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NAVY | DRB | 1999_Navy | ND99-00508
Original file (ND99-00508.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND99-00508

Applicant’s Request
The application for discharge review, received 990302, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized. 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 000110. 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. I fell that my discharge was inequitable since it was based upon one isolated incident. I have since led an exemplary life.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Resume

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     851029 - 851202  COG

 Period of Service Under Review :
Date of Enlistment: 851203               Date of Discharge: 870731

 Length of Service (years, months, days):

         Active: 01 07 29
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 97

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 2.00 (0)                OTA: 2.72

 Military Decorations: None

 Unit/Campaign/Service Awards: None

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 :

860317:  Applicant interviewed by Senior Chief Petty Officer Z_____, Inspector General's Office, RTC, Great Lakes indicates applicant maintained a good record throughout his training and has demonstrated a positive attitude and a sincere desire to be retained in the Navy. It was recommended that retention be granted in this case without conducting and Administrative Discharge Board. Based upon past experience, the information and documents reviewed in this case indicate that an Administrative Discharge Board would recommend retention [EXTRACTED FROM CO'S LETTER DATED 860319].

860319:  Commanding Officer, SSC, Great Lakes recommendation for retention.

860409:  Retention Warning: Advised of deficiency (fraudulent enlistment because of unrevealed pre-service civilian charges.), advised of consequences of further deficiencies, and issued discharge warning.

870121   NJP for violation of the UCMJ Article 92: Failure to obey a lawful order.
         Awarded: Reduction in Rate: Suspended for 3 Months.

 870409:  Most recent Substance Abuse Report indicates applicant is not dependent, not eligible, separate from service not via VA hospital.

870415   Reduction in Rate Vacated this date due to continued misconduct.

870415:  NJP for violation of UCMJ, Article 112a: Wrongful use of a schedule I controlled substance (marijuana)
 Awarded: Forfeiture of 369.00 per month for 2 months, reduction to E-2. No indication of appeal in the record.
870415:  Punishment of RIR to MMFN suspended at CO's NJP of 870128 vacated this date due to continued misconduct.

870430:  Medical evaluation for drug abuse found no evidence of drug addiction or dependence.

870515:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by use of marijuana and commission of a serious offense to wit: violation of Article 92: failure to obey lawful order.

870515:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

870521:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of a serious offense by violation of Article 92: failure to obey a lawful order.
870708:  CNMPC 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 870731 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).

The applicant’s issue states that he was discharged due to an isolated incident and his post service conduct merits an upgrade. The NDRB found the applicant was dual processed for his misconduct committed while on active duty. His service was marked with two NJP’s: Article 92 and Article 112A. Both offenses, if tried at Courts Martial, warrant punitive discharges and are considered serious offenses. Relief is therefore not warranted.

 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 15560A), effective 15 Jun 87 until
10 Jan 89, 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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