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NAVY | DRB | 2001_Navy | ND01-00497
Original file (ND01-00497.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00497

Applicant’s Request
The application for discharge review, received 010308, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 010710. 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. My discharge was improper because it is based on two disobedient events, without even taking into the consideration my otherwise impeccable duty.

The second event only occurred because I knew I was getting discharged, and I did not know that my present actions would still affect me.

2. I feel as though my accolades from superior officers were not taken into consideration while deciding my discharge:

a) Letter of Commendation by Captain K. B. L. I received this award for "professional abilities, initiative, and loyal devotion of duty" (See attachment)

b) I graduated #1 out of 14 in MT "A" school.

c) Williain Purden Award for Persistence, Initiative and Motivation. (See attachment)

3) My same disobedient action, considering my rank at the time, would result in only a demotion in the US Army--not a separation. This discernible difference in punishment confirms ambiguity during my discharge process.

4) My current status comprises working 35 hours a week while also being a full-time student at Tacoma Community College. (See attachment)

5) The last issue I would like to bring to your attention is pride and confidence. Since my discharge, I have been striving to reclaim my name, and to build back up my personal pride and confidence. I feel as though a change in my discharge will have an intrinsically positive impact on me. Thank you for you time.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of citation
Copy of Memorial Award
Copy of unofficial student transcript from Tacoma Community College
Two pages from applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970408 - 970928  COG

 Period of Service Under Review :
Date of Enlistment: 970929               Date of Discharge: 981005

 Length of Service (years, months, days):

         Active: 01 00 07
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: Unknown

 Highest Rate: MTSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 1.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

980806:  NAVDRUGLAB, reports applicant urine sample, received 980803, tested positive for THC.
980814:  NJP for violation of UCMJ, Article 112A: Wrongful use of THC.
         Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
980903:  Medical evaluation for drug abuse found the applicant to be marijuana dependent.
980925:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
980925:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
980925:  Applicant declined treatment.

 980928:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc., of a Scheduled 1 controlled substance on 25Sep98.
         Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
980928:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

980929:  COSUBGRU NINE 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 981005 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 issue 1, the Board found the applicant implies that a permissive doctrine exists whereby one in the military is allowed a "disobedient event". The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 2, the Board took into account the applicant’s “accolades” and determined that they do not mitigate the applicant’s misconduct while in the naval service. Relief denied concerning this issue.

In response to applicant’s issue 3, the Board would like to remind the applicant that he was in the U.S. Navy not the U.S. Army. The Board does not concern itself with affairs of the U.S. Army. The Board will not consider this issue.

In response to applicant’s issues 4 and 5, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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, is considered. The applicant provided an unofficial student transcript from Tacoma Community College as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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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