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NAVY | DRB | 2001_Navy | ND01-00595
Original file (ND01-00595.rtf) Auto-classification: Denied


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

ex-SKSN, USN
Docket No. ND01-00595

Applicant’s Request
The application for discharge review, received 010402, 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge came by way of unforeseen cercumstances. Though discharged as other than honorable, I had sought to be released from service after my tour on the U.S.S. CONCORD, which was to be other than honorable. The Board refused to discharge me, by reasons of past service rendered. After Captains mast refusal to discharge me still was refused. And when brought up on charges for the second time for the same reason, I just refuse to dispute the charges and accept whatever the discharge was, however today I have sincere regret why?
1. Being a school teacher, and need financial support in graduate work
2. Additional medical facilities to be served by.
3. Mortgage grants and benefits for home buying
4. If necessary, for recall if emergency purposes occur to better living standards and provide service for future preservation of democracy

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Twenty-three pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        871119 - 930919  HON
         Inactive: USNR (DEP)     871103 - 871118  COG

 Period of Service Under Review :
Date of Enlistment: 930920               Date of Discharge: 940823

 Length of Service (years, months, days):

         Active: 00 11 04
         Inactive: None

 Age at Entry: 32                          Years Contracted: 2

 Education Level: 14 1/2           AFQT: 66

 Highest Rate: SK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 2.80 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SASM with Bronze Star, NDSM, SSDR, AFEM, JMU

 Days of Unauthorized Absence: 2

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 :

931124:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample, received 931116, tested positive for cocaine.

931207:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession of a controlled substance.
         Award: Forfeiture of $503 per month for 2 months, restriction and extra duty for 45 days, reduction to SK3. No indication of appeal in the record.
931220:  Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty. Random urinalysis 931116. Physician found applicant not dependent. Commanding officer recommended separate not via VA hospital.

940207:  Administrative Discharge Board: Found applicant did commit misconduct due to the commission of a serious offense, and that findings do not warrant separation. Recommend retention.

940409:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0700, 19Feb94 to 0700, 21Feb94 (2 days/surrendered).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
940708:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $644 per month for 1 month, restriction and extra duty for 45 days, reduction to SKSN. No indication of appeal in the record.
940711:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
940713:          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.

940720:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

940801:  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 940823 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 response to the applicant’s issue, the NDRB does not understand what the applicant means by “unforeseen circumstances”. The applicant was discharged for his use of an illegal substance (cocaine). The Administrative Discharge Board found the applicant did commit a violation of UCMJ Article 112a but recommended retention due to the applicant’s service record. However, the applicant had two NJP’s after the ADB that included another incident of cocaine use on 8 June 1994. The NDRB found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. In addition, the NDRB has no obligation to change the applicant’s discharge in order to allow him to continue graduate work, obtain medical treatment, buy a home or improve living standards. Relief is not warranted.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good post-service character and conduct. Therefore no relief will be granted. The applicant 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.



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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