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NAVY | DRB | 2001_Navy | ND01-00357
Original file (ND01-00357.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND01-00357

Applicant’s Request
The application for discharge review, received 010126, 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 010829. 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

 1. I believe the discharge was not fair base on a few aspects. I fully accept the fact of going AWOL and I should have sat down & talked to someone before acting on it. Now, the drugs. I never touched a drug in my life & when they said I did drugs I said "yes" but I never got a piss test. Drugs has ruined half of my family that's why I never did & never will. I said yes just to get out. I have had two jobs since the service & passed both drug tests (unannounced). I now have a very good job that I love, and can look forward to a good future. Some people are made for the service and some don't know till they get there and the only way out is this. I feel bad for my actions & regret it. I wish you would change my discharge so it will make me feel better about myself, and for future jobs.

 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)               971014 - 971109  COG

 Period of Service Under Review :
Date of Enlistment: 971110               Date of Discharge: 981106

 Length of Service (years, months, days):

         Active: 00 10 21
         Inactive: 00 00 00

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 36

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605). [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

 Chronological Listing of Significant Service Events :

980901:         Declared a deserter.

 980910:  NJP for violation of UCMJ, Article 86: UA 980811-980906 (36days/S), violation of UCMJ Article 87: Missing Movement, violation of UCMJ Article 112a: Wrongful use of a controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

980917:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.
980917:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
981007:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave -30 days or more.

981030:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981106 under other than honorable conditions for misconduct due to commission of a serious offense (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 believe the discharge was not fair base on a few aspects. I fully accept the fact of going AWOL and I should have sat down & talked to someone before acting on it. Now, the drugs. I never touched a drug in my life & when they said I did drugs I said "yes" but I never got a piss test. Drugs has ruined half of my family that's why I never did & never will. I said yes just to get out. I have had two jobs since the service & passed both drug tests (unannouced). I now have a very good job that I love, and can look forward to a good future. Some people are made for the service and some don't know till they get there and the only way out is this. I feel bad for my actions & regret it. I wish you would change my discharge so it will make me feel better about myself, and for future jobs.” The record shows the applicant was processed for commission of a serious offense (Unauthorized absence over 30 days) and wrongful use of a controlled substance.
The Board found no inequity in the discharge. While the applicant may feel his discharge is not fair his willful disregard for basic military standards demonstrates the applicant’s service is accurately characterized as Other Than Honorable. Relief is not warranted.

The applicant takes issue with being processed for wrongful use of controlled substance without a “piss test.” The Board found this issue without merit. The member’s admission of illegal drug use alone is enough to warrant processing for discharge. A positive urinalysis is not required following a statement of illegal use or self admission. Relief is denied.
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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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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