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NAVY | DRB | 2000_Navy | ND00-00116
Original file (ND00-00116.rtf) Auto-classification: Denied


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

ex-BTFN, USN
Docket No. ND00-00116

Applicant’s Request
The application for discharge review, received 991102, 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 000803. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I believe my record as a civilian (ex service man) warrants an upgrade of my discharge. Five years have passed an I have had no problems - have become a contributing citizen.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870914 - 871015  ELS
                  USNR (DEP)      880429 - 881101  COG

 Period of Service Under Review :
Date of Enlistment: 881102               Date of Discharge: 931001

 Length of Service (years, months, days):

         Active: 04 11 00
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (11 months extension)

 Education Level: 12                        AFQT: 36/28

 Highest Rate: BT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (6)    Behavior: 3.50 (6)                OTA: 3.57

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC, NUC, KLM, SASM (4), SSDR (2)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

881107:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 900413:  Civil Conviction: General District Court, Criminal Division for violation of failure to appear in court.
 Sentence: Fined $50.00 and court cost and 5 days in jail. Suspended for 1 year.
900514:  Civil Conviction: General District Court, Traffic Court for violation of Driving on suspended license. Reduced to driving without a operators license.
 Sentence: Fined $100.00 and court cost.
910616:  Applicant to unauthorized absence 0700-1055, 16Jun91 (3 hours and 55 minutes).

920417:  Applicant to unauthorized absence 0700-0930 17Apr92 (2 hours and 30 minutes).

 930721:  NAVDRUGLAB, Great Lakes, IL reports urine sample received 15Jul93 tested positive for THC.

930729:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 9Jul93.
         Award: Forfeiture of $606.60 per month for 2 months, restriction and extra duty for 45 days, reduction to BTFN. No indication of appeal in the record.
930812:  Drug and Alcohol Abuse Report: Marijuana abuse, 9Jul93, random urinalysis, ashore off duty. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital.

930812:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
930812:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930823:  Retention Warning: Advised of deficiency (Violation UCMJ Art 134 (a) Debt, dishonorably failing to pay. Poor management of your finances. Conduct unbecoming of a Petty Officer to bring discredit upon the Naval Service.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930827:  Retention Warning: Advised of deficiency (Alleged violation of UCMJ Art 92 and SECNAVINST 5300.26B Sexual Harassment. Conduct unbecoming of a military service member to bring discredit upon the naval service.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
930831:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).
930903:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the drug abuse.

930922:  BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 931001 general (under honorable conditions) for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In response to applicant’s issue 1, 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 (E). 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112a, wrongfully using marijuana, if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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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