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NAVY | DRB | 2001_Navy | ND01-00317
Original file (ND01-00317.rtf) Auto-classification: Denied


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

ex-BMSA, USN
Docket No. ND01-00317

Applicant’s Request
The application for discharge review, received 010122, 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.

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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I B___ S____ is writing to you concerning my discharge. I would like to upgrade my discharge so that I could get an Government Job. I feel I have been punish long enough. I served 3 yrs and 7 months on a 4 year enlistment and made a bad decision on life not knowing the outcome. I never been arrested and I heard a steadi job as a civilian now I'm ready to work for my country again.

 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: USN                        None
         Inactive: USNR (DEP)     890629 - 890704  COG

 Period of Service Under Review :
Date of Enlistment: 890705               Date of Discharge: 930219

 Length of Service (years, months, days):

         Active: 03 07 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 27

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.45 (4)    Behavior: 3.40 (4)                OTA: 3.45

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (2 ND ), HSM, SASM, BATTLE"E"AWARD

Days of Unauthorized Absence: 9

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 :

921005:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 128, Assault consummated by a battery, to wit: On or about 920820 unlawfully grab SA A_____ by the head and throw him into a locker and bulkhead, violation of UCMJ, Article 117, Provoking speeches, and violation of UCMJ, Article 134, Threatening communicating.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930115:  NJP for violation of UCMJ, Article 92: Dereliction of duty.
Award: Restriction for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
930125:  Punishment of RIR to BMSN, suspended at CO's NJP on 930115 vacated this date due to continued misconduct.

930129:  NJP for violation of UCMJ, Article 134: Restriction breaking, violation of UCMJ Article 86: Absence from unit, organization, or place of duty 1500, 930115 - 0715, 930125 [9days/R], violation of UCMJ Article 91: Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer, violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
930129:  Medical evaluation for drug abuse found the applicant to be not drug dependent.

930129:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by the following Commanding Officer's NJPs: 930115, VUCMJ, Art 92-Dereliction in the performance of duty; 930129, VUCMJ Art 134-Restriction breaking, VUCMJ Art 86-Absence from unit, organization, or place of duty, VUCMJ Art 91-Insubordinate conduct toward Warrant Officer, Noncommissioned Officer, or Chief Petty Officer, VUCMJ Art 92-Failure to obey an order or regulation; Misconduct due to drug abuse as evidenced by the Commanding Officer's NJP: 930129, VUCMJ Art 112a-Wrongful use of a controlled substance.
930129:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
930202:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

930212:  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 930219 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: “I B___ S____ is writing to you concerning my discharge. I would like to upgrade my discharge so that I could get an Government Job. I feel I have been punish long enough. I served 3 yrs and 7 months on a 4 year enlistment and made a bad decision on life not knowing the outcome. I never been arrested and I heard a steadi job as a civilian now I'm ready to work for my country again.” 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 demonstrate his sobriety, positive community service, employment history, and clean police record. 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 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 " 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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