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NAVY | DRB | 2001_Navy | ND01-00387
Original file (ND01-00387.rtf) Auto-classification: Denied


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

ex-AMEAR, USN
Docket No. ND01-00387

Applicant’s Request
The application for discharge review, received 010208, 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 010907. 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 3630620.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge was inequitable because it was based on one isolated incident in 15 months of service with no other adverse action. Since that time I have become a responsible member of my community and do not wish the terms of my discharge to hamper my chances for future employment and prosperity.

 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)     920623 - 930607  COG

 Period of Service Under Review :
Date of Enlistment: 930608               Date of Discharge: 940825

 Length of Service (years, months, days):

         Active: 01 02 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 85

 Highest Rate: AMEAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 1.00 (1)                OTA: 2.60

 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, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

940603:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample received 940526 tested positive for THC.

940713:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession of controlled substance.
         Award: Forfeiture of $365.05 per month for 2 months, restriction and extra duty for 45 days, reduction to AMEAR. No indication of appeal in the record.
940713:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by offenses committed within your current enlistment.
940713:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.

940720:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. No VA drug rehab treatment is indicated.

940721:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Random urinalysis 940524. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: AMEAR (applicant) is a 19 year old with 1 year 1 month of naval service. As a result of a captain mast on 13 July 1994 for violation of UCMJ Art 112A, he is deemed to have no further potential for naval service. AMEAR (applicant) is currently being processed for separation.

940801:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

940817:  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 940825 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).

Issue 1. The applicant states, his discharge was inequitable because it was based on one isolated incident in 15 months of service, with no other adverse action. Additionally, he states he has become a responsible member of his community. The applicant was convicted of drug abuse at NJP. Drug abuse requires mandatory processing for separation. The applicant’s Commanding Officer recommended separation with an other Than Honorable discharge and BUPERS directed his discharge as requested by the Commanding Officer. The discharge was proper and equitable. Relief denied.

The applicant did not provide any documentation to support his claim that he is a responsible member of his community. Relief denied.

 Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, 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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