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NAVY | DRB | 1999_Navy | ND99-01215
Original file (ND99-01215.rtf) Auto-classification: Denied


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

ex-SH2, USN
Docket No. ND99-01215

Applicant’s Request
The application for discharge review, received 990915, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veteran as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000522. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Outstanding Military Record.

2. Court Martial awarded 21 day and reduction to E-5. No discharge awarded.

3. Administrative Board. Retain no discharge awarded.

4. 6 to 7 month later discharge General Discharge after 18 yrs with nothing.

5. Why was the Naval injust after going through all of the following Hearings.

 6. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we find the FSM is seeking to upgrade his discharge to Honorable.

The FSM underwent a Special Court-Martial and was found guilty for the use of controlled substances. His punishment was reduction by one pay-grade and sentenced to 21 days of confinement. Shortly thereafter, the FSM underwent an Administrative Board in which it was decided to retain the FSM. However, less than one year later, the FSM was processed out of the service with a General discharge due to misconduct.

The FSM has had an impeccable career until this unfortunate incident involving the use of Inca tea. The FSM's records contain many glowing reports about how the FSM was "outstanding" in his bearing, performance, and professionalism. The FSM was in the service approximately 18 years when this all resulted.

We continue to support the FSM in his contentions and we ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Record of Trial

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        790914 - 830901  HON
                  USN                       830902 - 850407  HON
                  USN                       850408 - 900103  HON
                  USN                       900104 - 950119  HON
         Inactive: USNR (DEP)     790907 - 790913  COG

 Period of Service Under Review :
Date of Enlistment: 950120               Date of Discharge: 971107

 Length of Service (years, months, days):

         Active: 02 09 18
         Inactive: None

 Age at Entry: 34                          Years Contracted: 4

 Education Level: 12                        AFQT: 25

 Highest Rate: SH1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 4.00 (2)                OTA: 4.00        4.0 EVALS
 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.00        5.0 EVALS

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (3), NAM, SSDR (2), NDSM

 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 :

960909:  NAVDRUGLAB, Jacksonville, FL reported urine sample received 26Aug96 tested positive for cocaine.

961021:  NAVDRUGLAB, Jacksonville, FL reported urine sample tested positive for cocaine.
970220:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongfully use cocaine in August 1996.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Reduction to SH2, confinement for 21 days.
         CA 970512: Sentence approved and ordered executed.

970512:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.
970512:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970703:  An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the applicant had committed misconduct due to drug abuse, and by a vote of 2 to 1, recommended retention.
970821:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

971001:  Chief of Naval Personnel forwarded recommendation to Assistant Secretary of the Navy (Manpower & Reserve Affairs).

971002:  Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved recommendation for discharge general (under honorable conditions) by reason of misconduct due to drug abuse.

971009:  BUPERS directed the applicant's discharge general (under 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 971107 general (under 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).
In response to applicant’s issues 1-5, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. There was no rights violation and no basis for relief.

In response to applicant’s issue 6, the applicant was processed out of the service with a General discharge for misconduct due to drug abuse. The Naval Service has a zero retention policy concerning those guilty of using drugs. The Board also found that the applicant’s “impeccable career” contained a violation of UCMJ Article 134 for marijuana use/abuse in 1983. The applicant was fortunate to have been retained after that violation. The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. At this time, the applicant has not provided any documentation of good character and conduct . The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, 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 highly encouraged to appear before a personal appearance hearing. The application must be received within 15 years from the date of discharge.

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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