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NAVY | DRB | 2001_Navy | ND01-00293
Original file (ND01-00293.rtf) Auto-classification: Denied


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

ex-MM3, USN
Docket No. ND01-00293

Applicant’s Request
The application for discharge review, received 010117, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a personal appearance discharge review before a traveling panel closest to New York, NY. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 010629. 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I was racially harassed by less honorable superiors on a daily basis. However, I ould not refrain from their mistreatment. That is why alot of things went against my favor in the Navy.

2. I did not ever use any drug considered ecstacy. I have never tried it and somehow it was either put into my system by a trickster or my urinalysis reports were misconstruted.
3. It is hard for me to receive appropriate employment. I am denied opportunity because of the discharge for federal, city and state job opportunities.

4. Mentally and physically my life has been so much without the military. It had to be the constant harassment that troubled me mentally,. I wish to live a conscientious life.

Applicant marked the block for additional issues as an attachment to the application, however no documents were found.

 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)     960620 - 961111  COG

 Period of Service Under Review :
Date of Enlistment: 961112               Date of Discharge: 000616

 Length of Service (years, months, days):

         Active: 03 07 05
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 16                        AFQT: 78

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.67 (3)    Behavior: 2.50 (4)                OTA: 2.36        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, NEM, SSDR, NASR

 Days of Unauthorized Absence: None

 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 :

970115:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information, to wit: failure to disclose unpaid speeding violation, 9/96. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

990210:  Retention Warning: Advised of deficiency (Unauthorized absence, failure to attend extra study on 6Feb99, failure to obey a lawful order on 6Feb99, and dereliction of duties.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990519:  Retention Warning: Advised of deficiency (Unauthorized absence, failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990601:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order or regulation on 24May99.
         Award: Forfeiture of $200 per month for 1 month, oral reprimand, reduction to MMSN. Reduction suspended for 6 months. No indication of appeal in the record.
990601:  Retention Warning: Advised of deficiency (performance and conduct will terminate the reasonable period of time for rehabilitation that this counseling/warning entry provides.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 990902:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order or regulation on 20Aug99, to wit: failing to qualify his senior in rate combat systems department watchstation of torpedoman of the watch.
         Award: Forfeiture of $100 per month for 2 months, restriction for 5 days. No indication of appeal in the record.
990923:  Commander, Submarine Squadron 4 prefers retention of applicant and recommends against an administrative separation board.
991001:  NJP for violation of UCMJ, Article 86: Absence without leave on 27Sep99.
         Award: Oral reprimand, restriction and extra duty for 7 days. No indication of appeal in the record.
000107:  NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample received 991220, tested positive for MDMA (ecstasy).
000309:  Applicant was administered a poloygraph examination. After evaluating the charts, it was the opinion of the examiner that applicant was not being truthful when responding to the relevant questions.
000519:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of and misconduct due to commission of a serious offense and misconduct due to drug abuse.
000519:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000523:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000526:  Commanding officer recommends discharge under other than honorable conditions by reason of commission of a serious offense and misconduct due to drug abuse (use).

000602:  COMSUBGRU TWO 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 000616 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).

 In the applicant’s issue 1, the applicant states that he was “racially harassed” on a daily basis and that is “why a lot of things went against my favor in the Navy.” The Board found no evidence of harassment in the record, nor did the applicant present any evidence to show he was prejudiced against. The Board found that the applicant was given several chances to change his behavior. The applicant was given 4 Letters of retention, awarded NJP on 3 separate occasions, and tested positive for ecstasy on a command urinalysis. The Board found no correlation with the applicant’s misconduct and his allegations of harassment. No relief will be granted based on this issue.

In the applicant’s issue 2, the applicant denies use of ecstasy. The applicant tested positive for ecstasy on a command urinalysis dated 991220. Unless the applicant can present concrete evidence of not having used the controlled substance, the Board’s presumption of regularity holds. No relief will be granted based on this issue.

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. In response to the applicant’s issues 3 and 4, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. 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.

 Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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 " afls10.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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