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NAVY | DRB | 1999_Navy | ND99-00939
Original file (ND99-00939.rtf) Auto-classification: Denied


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

ex-EN3, USN
Docket No. ND99-00939

Applicant’s Request
The application for discharge review, received 990702, requested that the characterization of service on the discharge be changed to honorable. 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 000323. 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 HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1.       Dear DRB,
I am writing this letter to your board, in hopes of changing my discharge from a General under Honorable Conditions to an Honorable Discharge. This one time isolated incident shouldn’t haunt me for the rest of my life. This behavior has not and will not be repeated. While on active duty in the US Navy for four and a half years, my general conduct, efficiency ratings/ behavior and proficiency marks were above average. Since my discharge I believe that youth and maturity was a major factor. Currently I am employed at the Exxon Baton Rouge, LA Refinery as an Assistant Operator, since April 20, 1998. I have a wife of Seven years, and a Two-year-old son. So I put into your review boards hands, my case pleading that you look at all items inclosed, and hopefully will come to the conclusion that while in the navy and since my I really do deserve an honorable discharge. Thank you so much for your time and consideration. If my discharge can not be upgraded, please inform me of the reason or reasons. Listed below is a narrative of each document inclosed by number.
         1) DD-214
         2) Seven evaluations from navy (these are the only ones I had access to)
         3) Two evaluations from my current employer (Exxon)
         4) Discharging CO’s recommendations
         5) Discharging Command Master Chief’s recommendation
         6) Letter of Commendation from CO
         7) Sailor of the Month Award
         8) Junior Sailor of the Quarter Award
         9) Enlisted Surface Warfare Specialist Certificate
         10) Article from local newspaper in Virginia Beach, VA
         11) Letter from US Atlantic Fleet Master Chief
         12) Letter of Commendation from Commander Sixth Fleet
         13) Letter of Commendation from Commander Western Hemisphere Group
         14) My letter to Washington prior to discharge
                   15) Drug and Alcohol Abuse report on confirmation of non-dependency

                                                               Very Respectfully,
                                                               [Signed Applicant]
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant’s enlisted evaluations (7)
Applicant’s evaluations from Exxon (2)
Letter of Appreciation from USS Yorktown Commanding Officer dated 19 Nov 96
Letter of Appreciation from USS Yorktown Command Master Chief dated 20 Nov 96
Letter of Commendation from USS Pensacola
Letter of Commendation from USS Pensacola dated 10 May 95
Letter of Commendation dated 1 July 95 regarding his selection as Junior Petty Officer of the Quarter
Letter of Qualification for Enlisted Surface Warfare Specialist
Copy of an article from a local newspaper
Letter of Congratulations from Master Chief Petty Officer of Naval Surface Force US Atlantic Fleet dated 23 May 1995
Letter of Commendation from Commander Sixth Fleet
Letter of Commendation from Commander, Western Hemisphere Group
Copy of Applicant’s letter concerning his discharge dated 25 Oct 1996
DAAR report not dated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     911114 - 920624  COG

 Period of Service Under Review :
Date of Enlistment: 920625                        Date of Discharge: 961120

 Length of Service (years, months, days):

         Active: 04 04 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (19 month extension)

 Education Level: 12                        AFQT: 37

 Highest Rate: EN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.87 (3)    Behavior: 3.87 (3)                OTA: 3.87 (on a 4.0 scale)
                  4.0 (3)                    2.0 (3)                           3.0 (on a 5.0 scale)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, SASM, SSDR(2), NUC

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

930518:  NJP for violation of UCMJ, Article 121: Larceny (3 specs).
         Award: Forfeiture of $14 per month for 1 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
961022:  NAVDRUGLAB report finds applicant tested positive for marijuana.

 961115:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961115:          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 and to write statements in his support.
961129:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

9612XX:  From Pers 83: “EN3 H___[applicant] tested positive for marijuana use. He was processed for separation and received a general discharge at the local level. However, reference (a) indicates that EN3 H___ admitted to drug abuse and therefore was eligible for an OTH discharge regardless of the type of urinalysis used. Member should have been processed using administrative board procedures per MPM 3640200.7 and 3640200.8”.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961122 under honorable conditions (general) 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 implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

In reviewing the applicant’s discharge, the Board reviewed the applicant’s entire service record and found no evidence or mitigating circumstances surrounding the applicant’s discharge. The applicant requested that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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, is considered. The applicant provided some documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

.

 Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT 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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