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NAVY | DRB | 2000_Navy | ND00-00408
Original file (ND00-00408.rtf) Auto-classification: Denied


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

ex-TM2, USN
Docket No. ND00-00408

Applicant’s Request
The application for discharge review, received 000210, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000907. 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 OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

The NDRB did note an administrative error on the original DD Form 214. Since applicant was not issued a DD Form 214 for the first served period (07 July 89 to 07 June 93), recommend the following corrections: Block 12a, Date Entered AD This Period, should read: "89JUL06" vice "93JUN07", Block 12c, Net Active Duty This Period, should read: "05 01 06", vice "01 02 04", Block 12d, Total Prior Active Service, should read: "00 00 00" vice "03 11 02", and Block 18, Remarks, should contain the following entry: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 89JUL06 TO 93JUN06. The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. The years of faithful & zealous service prior to the death of my grandmother in June 93. Her death occurred 1 day prior to my reenlistment. At which time I received my first Good Conduct Award.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Character of Discharge Determination From VA dtd Jan 4, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        890706 - 930606  HON
         Inactive: USNR (DEP)     890225 - 890705  COG
                                             880728 - 880916  ELS- Med Disqualification

 Period of Service Under Review :
Date of Enlistment: 930607               Date of Discharge: 940810

 Length of Service (years, months, days):

         Active: 01 02 04
         Inactive: None

 Age at Entry: 22                          Years Contracted: 3

Education Level: 12                        AFQT: 64

 Highest Rate: TM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.4 (2)     Behavior: 2.3 (2)                 OTA: 3.4

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, CGSOSR, NDSM, GCM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article formerly 3630650.

 Chronological Listing of Significant Service Events :

930607:  Re-enlisted for a term of 3 years.

 940321:  DAAR: Positive for marijuana a result of random urinalysis conducted on 3 Mar 94, screened by CAAC and physician, not dependent, recommend separate from service.
940420:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 112a: on or about 22 February 1994 to 3 March 1994, wrongfully used marijuana.

940527:  A pplicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 112a: wrongfully use marijuana. The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. Applicant understood his discharge is approved, he would be administratively reduced to paygrade E-3, effective the date that request for discharge is approved.

940801:  The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 940810 under other than honorable conditions in lieu of a trial by court-martial (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 the applicant’s issue, the Board found that the death of the applicant’s grandmother had no bearing whatsoever on the applicant’s drug use. To permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.

 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. 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 9, effective
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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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