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NAVY | DRB | 2000_Navy | ND00-00231
Original file (ND00-00231.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND00-00231

Applicant’s Request
The application for discharge review, received 991208, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant selected the American Legion as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928. 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. (EQUITY ISSUE) On the basis of the civil court dismissal of his marijuana and drug paraphernalia charges in exchange for a plea of guilty to disorderly conduct, this former member avers that his reason for discharge, misconduct due to wrongful possession of a controlled substance, and character of separation, General (Under Honorable Conditions), are inequitable and warrant upgrade.

2. (EQUITY ISSUE) This former member further requests 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.

Documentation
In addition to the service record, No Discharge Package Available, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Letter for Deficiencies from LT. E___ H____, JAGC, USN (3pgs)(2 copies)
Copy of Sworn Statement from MAC(SW) P____ M. S_____, USN (2)
Copy of Letter of Dismissal of Charges from Attorney (2)
Copies of Enlisted Performance Evaluation Report (3)
Copy of Letter from Commanding Officer to Senator H____ (3pgs)(2 copies)
Letter from Applicant (2pgs)
Copy of Preliminary Inquiry Report (2pgs)
Copy of Sworn Statement from BM1 R____ G. H____, USN
Copy of Court Memorandum
Copy of Commanding Officer's Non-Judicial Punishment
Copy of Preliminary Report (2pgs)
Copy of Acknowledgement of Hearing Rights (2pgs)
Letter from Applicant
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     920821 - 930802  COG

 Period of Service Under Review :
Date of Enlistment: 930803               Date of Discharge: 970129

 Length of Service (years, months, days):

         Active: 03 05 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 61

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.66 (3)    Behavior: 3.66 (3)                OTA: 3.66

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NAVY"E"RIBBON, AFSM, SSDR

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 :

960711:  NJP for violation of UCMJ, Article 112a: Wrongful possession of a controlled substance.
         Award: Forfeiture of $537 45 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970129 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 the applicant’s issue 1, the Board found that the applicant plead guilty to a lesser offense in a civilian court, when he was pulled over by the police and arrested for possession of marijuana. The applicant was brought to CO’s NJP on 960711 for wrongful possession of a controlled substance. The Commanding Officer had enough evidence to both bring the applicant to NJP as well as process him for administrative separation, based on a preponderance of evidence. The applicant was then discharged for misconduct due to drug abuse with a General (Under Honorable Conditions). Normally, those separated for misconduct due to drug abuse are given other than honorable discharge characterizations. The Board finds the discharge equitable and will not grant relief on the basis of this issue.

In the applicant’s issue 2, 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), 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 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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