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NAVY | DRB | 2000_Navy | ND00-00106
Original file (ND00-00106.rtf) Auto-classification: Denied


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

ex-HT3, USN
Docket No. ND00-00106

Applicant’s Request
The application for discharge review, received 991027, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a Traveling Panel closest to Seattle, WA. The applicant did not designate a representative on the DD Form 293. In the Acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720. After a thorough review of the records, 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 (verbatim)

 1. My discharge was inequitable because it was based on an isolated incident after 52 months of outstanding service. I currently hold a position with the Department of the Navy at Puget sound Naval Shipyard.

 Documentation
Only the applicant's service and medical records were reviewed as the applicant did not provide additional documentation to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880222 - 880223  COG

 Period of Service Under Review :
Date of Enlistment: 880224               Date of Discharge: 920723

 Length of Service (years, months, days):

         Active: 04 05 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (24 months extension)

 Education Level: 20                        AFQT: 88

 Highest Rate: HT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)    Behavior: 3.45 (4)                OTA: 3.91

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SWASM (w/2 Bronze Stars), Battle "E", MUC, SSDR

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 :

880222:  Acknowledged understanding of the Navy's Drug/Alcohol Abuse Policy.

 920224:  Extended enlistment for 24 months.

920601:  NJP for violation of UCMJ, Article 112A: wrongful use of marijuana at San Diego, CA on or about 92MAY04.
         Award: Forfeiture of $550 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4 and oral reprimand. No indication of appeal in the record.
920602:  Offered but declined VA treatment upon discharge.

 920602:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse due to violation of UCMJ, Article 112a - wrongful use of marijuana on or about 4 May 92 as evidenced by CO's NJP held on 1 JUN92.
920602:  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.

920611:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. VA treatment not required.
920622:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920706:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920706:  NJP for violation of UCMJ, Article 92: failure to obey lawful order - missing restricted muster, 0730, 27 JUN 92.
Award: Oral reprimand, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
920723:  Applicant discharged with an Under Other Than Honorable Conditions by reason of misconduct - drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 920723 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).
In issue 1, the applicant states “m y discharge was inequitable because it was based on an isolated incident after 52 months of outstanding service.” T he applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". 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.

The following is provided for the applicant’s edification. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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