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NAVY | DRB | 1999_Navy | ND99-00124
Original file (ND99-00124.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-DCFA, USN
Docket No. ND99-00124

Applicant’s Request
The application for discharge review, received 981102, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991004. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My other than honorable discharge was inequitable because there was no proof of my so called wrongful use of a controlled substance to wit.

2. Please note my personal letter


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Applicant’s Special Request dtd 12 Apr 93

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     910506 - 910508  COG

 Period of Service Under Review :
Date of Enlistment: 910509               Date of Discharge: 930618

 Length of Service (years, months, days):

         Active: 02 01 10
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rate: DC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.60 (1)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BER

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

930505:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance to wit: LSD.
         Award: Forfeiture of $474 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFN. No indication of appeal in the record.
930506:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by service record entries. [Extracted from Commanding Officer's message dated 26 May 1993.]

930506:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from Commanding Officer's message dated 26 May 1993.]
930510:  Applicant determined not to be drug or alcohol dependent by medical officer and recommended for separation. [Extracted from Commanding Officer's message dated 26 May 1993.]
930526:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930607:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930618 under other than honorable conditions for misconduct due to drug abuse (use) (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

1. The applicant states that “the other than honorable discharge was inequitable because there was no proof of my so called wrongful use of a controlled substance to wit.” The applicant however was processed for commission of a serious offense- drug abuse (use) as evidenced by his NJP 930505. The finding of guilt or innocence at non-judicial punishment is based on the preponderance of evidence. Clearly, self- admonition to the allegation of illegal drug use (as stated in the applicant’s letter dtd 981026) weighs heavily in the CO’s consideration of the evidence. In other words, self-admonition is all the proof necessary for finding of guilt at NJP. Furthermore, there is no evidence of appeal or objection to discharge by the applicant in the service record. Relief not warranted.

2. The NDRB found the applicant’s document 1 (special request authorization dtd 930412) requesting courts martial is irrelevant. The Manual for Courts Martial part V para III, provides that a member assigned to a vessel may not refuse non-judicial punishment. Relief denied.

3. The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.





Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE .

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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