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NAVY | DRB | 2001_Navy | ND01-00409
Original file (ND01-00409.rtf) Auto-classification: Denied


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

ex-SHSN, USN
Docket No. ND01-00409

Applicant’s Request
The application for discharge review, received 010215, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed American Legion as his representative on the DD Form 293.

Decision

A personal appearance documentary discharge review was conducted in Washington, D.C. on 010924. 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 (verbatim)

 1. (Equity Issue) As evidenced by his supporting documentation and testimony, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to General (Under Honorable Conditions) as authorized under provisions of SECNAVINST 5420.17C, paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)
Copy of Police Record Check
Letter from Applicant
Character Reference Letter (2)
Character/Employment Reference Letter
Copy of Enlisted Performance Record
Partial Enlisted Performance Evaluation Reports (3pgs)
Copies of Voluntary Statements (3)
Copy of Superior Performance Citation
Copy of Joint Meritorious Unit Award Citation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: ARNG              850620 - 850927  HON
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 900524               Date of Discharge: 930930

 Length of Service (years, months, days):

         Active: 03 04 06
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 48

 Highest Rate: SH2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (5)    Behavior: 3.90 (5)                OTA: 3.90

 Military Decorations: None

 Unit/Campaign/Service Awards: ASR, JMUC, SSDR, SWASM, KLM, 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 :

900518:  Applicant signed the Statement of Understanding concerning the Navy's zero tolerance policy for those who utilize illegal drugs.

900518:  Applicant granted a prior service drug waiver upon enlistment.

930407:  NAVDRUGLAB NORFOLK, VA. urinalysis report indicates applicant tested positive for cocaine.

930409:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
         Award: Forfeiture of $531.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Appealed

930414:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to drug abuse (use).
930415:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930418:  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.

930504:  NJP appeal denied.

930621:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to drug abuse (Use).

930716:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to drug abuse (Use).
960304:  NDRB documentary record review Docket Number ND96-00072 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930930 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 post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to General (Under Honorable Conditions). 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. 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 post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that after having both a personal appearance hearing and a document review, he has exhausted all options to have his case reviewed by the NDRB. Any further review and consideration for recharacterization of his discharge will have to be conducted by the Board of Corrections of Naval Records (BCNR). Relief denied.

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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