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NAVY | DRB | 2001_Navy | ND01-00271
Original file (ND01-00271.rtf) Auto-classification: Denied


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


ex-MSSR, USN
Docket No. ND01-00271

Applicant’s Request
The application for discharge review, received 010105, 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. Subsequent to the application the applicant obtained representation by American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010601. After a thorough review of the records, 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 1910-146, formerly Article 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues (verbatim)

1. (Equity Issue) This former member avers that multiple medical problems, including 5 surgeries, impaired her ability to serve, and contributed to and extenuated her misconduct of record. On this basis, she opines that separation under honorable conditions is warranted.

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 her application.

 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)     960314 - 970217  COG
Period of Service Under Review :
Date of Enlistment: 970218               Date of Discharge: 981201

 Length of Service (years, months, days):
         Active: 01 09 14
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 33
Highest Rate: MSSA

 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: None
*No marks found in service record.
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

981009:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86.
          Specification 1: Absence without leave on 10Sep98.
 Specification 2: Absence without leave on 22Sep98.
          Charge II: violation of the UCMJ, Article 92:
         Specification 1: Failure to obey order between June 1998 and August 1998
          Specification 2: Failure to obey order between June 1998 and August 1998
          Specification 3: Failure to obey order on 11Sep98.
         Charge III: violation of the UCMJ, Article 107:
          Specification: False official statement on 11Sep98.
          Charge IV: violation of the UCMJ, Article 112A:
          Specification: Wrongful use of controlled substance.
          Charge V: violation of UCMJ, Article 121 (3 specs):
         Specification 1: Larceny 16Nov97 and 15Feb98.
          Specification 2: Larceny 3Feb98 and 23Feb98.
          Specification 3: Larceny between 20Jan98 and August 1998.
          Finding: to Charges I through V and the specifications thereunder, guilty.
          Sentence: Forfeiture of $618.00, confinement for 30 days, reduced to SR.
         CA action 981014: Sentence approved and ordered executed.
981109:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.
981109:          Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
981113:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of a serious offense.

981120:  Commander, Naval Base, San Diego 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 981201 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).
The applicant’s representative submitted the following as issue 1: (Equity Issue) This former member avers that multiple medical problems, including 5 surgeries, impaired her ability to serve, and contributed to and extenuated her misconduct of record. On this basis, she opines that separation under honorable conditions is warranted. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied .
The applicant’s representative submitted the following as issue 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. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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, is considered. The applicant did not provide any documentation of her post-service. Therefore no relief will be granted. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs in order for consideration for clemency based on post-service conduct. She is encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.



Pertinent Regulation/Law (at time of discharge)
A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation 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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