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NAVY | DRB | 2000_Navy | ND00-00774
Original file (ND00-00774.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND00-00774

Applicant’s Request
The application for discharge review, received 000605, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. 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 010104. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Please note that on 21May98 I was interviewed and counseled by J_ A_ R_, clinical psychologist, and found to not be alcohol/drug dependent. Should alcohol/drug dependency be an issue.

2. Please consider a change of reentry code of RE-4 to the lesser.

3. Take note that on 26May98 a letter Ser 10/L2679 by the Commanding Officer shows in line NJP awarded for all charges files; however I recieved an OTH per my request for seperation.

4. I find it very unusual that days active and the days lost or not given credit for vary substatially document to document.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     971211 - 971217  COG

 Period of Service Under Review :
Date of Enlistment: 971218               Date of Discharge: 980617

 Length of Service (years, months, days):

         Active: 00 06 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 65

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 115

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605). Discharged in absentia.

 Chronological Listing of Significant Service Events :

980508:  NAVDRUGLAB, Great Lakes, IL, reported applicant’s urine sample, received 980506, tested positive for THC/cocaine.

980520:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence from 1200, 1Jan98 until 1030, 27Jan98 (26 days/surrendered).
Specification 2: Unauthorized absence from 0800, 1Feb98 until 0529, 2May98 (89 days/apprehended), violation of UCMJ Article 112A: Wrongfully use marijuana and cocaine on 6May98.
Award: Forfeiture of $199 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
980521:  Recruit Evaluation Unit: Assessment: Alcohol abuse, EPTE. Applicant found not alcohol/drug dependent.
980521:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse.
980521:          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.
980526:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse.

980602:  Commander, Naval Training Center, Great Lakes directed the applicant's discharge under other than 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 980617 under other than 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, the Board found that alcohol/drug dependency is not an issue. Whether or not the applicant is drug dependent, the applicant still violated UCMJ Article 112a for wrongfully using cocaine and marijuana. No relief will be granted concerning this issue.

In response to applicant’s issue 2, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to re-enlistment. A request for waiver is normally done only during the processing of a formal application for enlistment.

 In response to applicant’s issue 3, t o 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.

 In response to applicant’s issue 4, the Board found that this issue had no bearing on the review of the applicant’s discharge package. The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended. Relief denied.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] 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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