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NAVY | DRB | 2001_Navy | ND01-00180
Original file (ND01-00180.rtf) Auto-classification: Denied


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

ex-MSSR, USNR
Docket No. ND01-00180

Applicant’s Request
The application for discharge review, received 001130, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010510. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. To Whom It May Concern, I have been out of the military for 7 years now and although I have made mistakes in the Navy and was not given an Honorable Discharge. Since my time out of service I have walked a straight line. I have no criminal record since I was discharged and had none before I went into the Navy. My intentions are to join the police academy in my hometown of W_, T_. I would have no other reason to upgrade my discharge other than to do this. I make this career choice for personal advancement and for my hometown. I hope you, the Board, will note my worthiness and consider my intentions to better my life and my family's. Thank you for your time.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference ltr from J_ R_, Constable, dtd Nov 1, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 910228               Date of Discharge: 930111

 Length of Service (years, months, days):

         Active: 01 04 08
         Inactive: 00 06 05

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 42

 Highest Rate: MSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (2)     Behavior: 1.5 (2)                 OTA: 3.0

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

910904:  Commenced 24 months of active duty.

920214:  Acknowledged understanding of the Navy alcohol/drug policy.

 920908:  NJP for violation of UCMJ, Article 112A: wrongful use of cocaine.
         Award: Forfeiture of $392 per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.

921010:  DAAR: Date of incident 8SEP92, unit sweep, positive for cocaine use, dependency not determined, recommend NJP and separation from service - no potential for future naval service.

921203:  NJP for violation of UCMJ, Article 92: wrongfully possessing 43 hypodermic needles for use in controlled substances; violation of UCMJ, Article 121: larceny by stealing $155.00, property of MS3 M_.
         Award: Forfeiture of $392 per month for 2 months, restriction for 60 days. No indication of appeal in the record.

921203:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by CO's non judicial punishment for violation of UCMJ, Article 92 (violate a lawful general order) and Article 121 (steal $155.00, the property of another) and misconduct due to drug abuse as evidenced by CO's non judicial punishment for violation of UCMJ, Article 112a (wrongful use of cocaine).
921203:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

921214:  Medical Officer, USS Coronado: Believe young man demonstrates a propensity for drug abuse, including anabolic steroids with poor to fair rehabilitation potential. There is no evidence for dependence.
921221:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by violation of UCMJ Article 92 and Article 121, and misconduct due to drug abuse (use) as evidenced by violation of UCMJ, Article 112a. Commanding officer’s comments (verbatim): "While being processed for ADSEP due to drug abuse incident in August 1992, MSSR (Applicant) was found to have stolen some money from a shipmate and, also, to be in possession of drug paraphernalia without medical authorization. The nature of these offenses is serious, especially since he learned nothing from being caught using drugs the first time. His work performance has been no better than average and his use of illegal drugs is incompatible with continued military service. MSSR (Applicant) has no potential for future naval service and his misconduct warrants an other than honorable discharge.

921231:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930111 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 The applicant’s issue states: “To Whom It May Concern, I have been out of the military for 7 years now and although I have made mistakes in the Navy and was not given an Honorable Discharge. Since my time out of service I have walked a straight line. I have no criminal record since I was discharged and had none before I went into the Navy. My intentions are to join the police academy in my hometown of W_, T_. I would have no other reason to upgrade my discharge other than to do this. I make this career choice for personal advancement and for my hometown. I hope you, the Board, will note my worthiness and consider my intentions to better my life and my family's. Thank you for your time.” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 failed to provide documentary evidence to support his issue. The record shows the applicant was discharged for wrongful use of cocaine. He provided no documentation to demonstrate sobriety and a drug free life. Relief is not warranted.

The applicant 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.




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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