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NAVY | DRB | 2001_Navy | ND01-00542
Original file (ND01-00542.rtf) Auto-classification: Denied


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

ex-OSSA, USN
Docket No. ND01-00542

Applicant’s Request
The application for discharge review, received 010326, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a traveling panel closest to Los Angeles, CA. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808. 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I am seeking to obtain an upgrade in my discharge to general/under honorable conditions. I am seeking an upgrade because I feel I did a good job while in the Navy (see attachment). I feel I served my country well for over two years. I entered the Navy at age 17 and was a good naval employee. I was not fully matured but did the best I knew how. I was discharged for a positive urinalysis for marijuana. I have since completed a drug rehab seven years ago (see attached), obtained an AA degree, and have worked with at-risk youth for the past 7 years. I feel I have honored my country by serving over 2 years and I also feel I have been a positive productive member of society working in the social service field. I feel I am worthy of and deserve an upgrade to general/under honorable conditions.

Applicant marked the box "I have listed additional issues as an attachment to this application" but no additional issues were found in case folder.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of letter of appreciation dated September 29, 1989
Character/job reference dated November 3, 1997
Character/job reference dated January 19, 1995
Character/job reference dated February 2, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870121 - 870816  COG

 Period of Service Under Review :
Date of Enlistment: 870817                        Date of Discharge: 891113

 Length of Service (years, months, days):

         Active: 02 02 27
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                        AFQT: 46/92

 Highest Rate: OSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (3)    Behavior: 3.00 (3)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

870822:  Applicant briefed on Navy's policy on drug and alcohol abuse.

880722:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
880915:  NJP for violation of UCMJ, Article 92: Failure to obey a written order.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 30 days, reduction to OSSR. Reduction suspended for 3 months. No indication of appeal in the record.
880915:  Retention Warning from USS CAYUGA (LST 1186): Advised of deficiency (Failure to obey an written order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890524:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0715-0745, 8May89, violation of UCMJ, Article 92 (2 specs)
         Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 45 days. Forfeiture suspended for 3 months. No indication of appeal in the record.
891003:  NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 890922, tested positive for cocaine.
891006:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance, to wit: cocaine.
         Award: Forfeiture of $380 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSA. No indication of appeal in the record.
891027:  Drug screen: A: Drug abuse, cocaine. Recommendation: Counseling - Level II treatment of drug abuse.
891031:  USS CAYUGA (LST 1186) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your service record.
891101:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
891102:  Applicant waived his right to an administrative discharge board.
891107:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

891109:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891113 under other than honorable conditions for misconduct due to a pattern of misconduct (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 am seeking to obtain an upgrade in my discharge to general/under honorable conditions. I am seeking an upgrade because I feel I did a good job while in the Navy (see attachment). I feel I served my country well for over two years. I entered the Navy at age 17 and was a good naval employee. I was not fully matured but did the best I knew how. I was discharged for a positive urinalysis for marijuana. I have since completed a drug rehab seven years ago (see attached), obtained an AA degree, and have worked with at-risk youth for the past 7 years. I feel I have honored my country by serving over 2 years and I also feel I have been a positive productive member of society working in the social service field. I feel I am worthy of and deserve an upgrade to general/under honorable conditions.”

The applicant’s issue states his immaturity led to his misconduct. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief is not warranted.

Additionally, the applicant further states that that he was discharged for a “positive urinalysis for marijuana” and has completed drug rehabilitation. The record shows the applicant was found guilty at NJP for wrongful use of a controlled substance- cocaine. The Board found no documentation in the application of successful completion of a drug rehabilitation program. 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 15560A, Change 7, effective 25 May 89 until 20 Aug 89), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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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