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NAVY | DRB | 2001_Navy | ND01-00735
Original file (ND01-00735.rtf) Auto-classification: Denied


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

ex-ASAN, USN
Docket No. ND01-00735

Applicant’s Request
The application for discharge review, received 010508, 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 011127. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I am submitting this application for you to consider upgrading my discharge to "General" COND. I was a young man when I was discharged, it has been 8 years since. I am getting my life in order and on a positive path I am a member of plumbers and pipe fitters union local #44 in Ventura, CA. I am attending college through my union. I have been attending classes for 4 years now. I am considering starting a family and I would like to use my veterans benefits to get a V.A. Home loan. The incident that caused my discharge was an isolated incident. I do not use drugs. I was a young man 3000 miles from home. I was just trying to make friends. I chose the wrong people to hang around with. I've had to live with that decision for eight years now. I loved the navy, I was even considering a career. I received 3.8 evals and made AS3 in 2 years. I was a proud desert storm veteran. Please allow me to upgrade my discharge like I've stated I've regretted my decision for 8 years. I would like to thank you for your understanding.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2).

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     900913 - 900920  COG

 Period of Service Under Review :
Date of Enlistment: 900921               Date of Discharge: 930824

 Length of Service (years, months, days):

         Active: 02 11 04
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rate: AS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.48 (5)    Behavior: 3.44 (5)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDRwb*, SWASMwb*, KLM, NUC

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 3630600.

 Chronological Listing of Significant Service Events :

901220:  Retention Warning: Advised of deficiency [Violation of the UCMJ Articles 86: Failure to go to appointed place of duty, and Article 92: (3 Specs) Failure to obey lawful written order]. Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
901220:  NJP for violation of UCMJ, Article 86: On or about 1800, 901215, without authority, fail to go at the prescribed time to his appointed place of duty, to wit: BLDG 93, until on or about 1915, 901215 (1 hour and 15 minutes), violation of UCMJ Article 92: (2 Specs), Spec 1: Having knowledge of a lawful order issued by CO, RTC San Diego, CA, to wit: Apprenticeship Training Handbook, Chap 11, para E, pg 18, dtd 900511, on or about 1355, 901215, fail to obey the same by wrongfully wearing civilian clothes; Spec 2: Having knowledge of a lawful order issued by CO, RTC San Diego, CA, to wit: RTCSDINST 5400.41 dtd 900307, on or about 1915, 901215, failed to obey the same by wrongfully drinking alcoholic beverages 12 hours prior to having duty.
         Award: Forfeiture of $200.00 per month for 2 months. No indication of appeal in the record.

930527:  Medical evaluation indicates applicant was not found alcohol or drug dependent, recommended for Level II CAAC.

930624:  NJP for violation of UCMJ, Article 92: Violate a lawful general regulation, underage drinking.
         Award: Forfeiture of $100.00 per month for 1 month. No indication of appeal in the record.

930722:  NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for THC.
930728:  DAAR indicates marijuana abuse as a result of an aftercare urinalysis.

 930727:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your violation of UCMJ, Article 92: Violation of a lawful general regulation by underage drinking; misconduct due to drug abuse as evidenced by your positive urinalysis for wrongful use of marijuana at a routine aftercare urinalysis; and convenience of the government due to alcohol abuse rehabilitation failure.
930727:          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.
930815:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to drug abuse and convenience of the government due to alcohol abuse rehabilitation failure.

930824:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930824 under other than honorable conditions for misconduct due to commission of a serious offense (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 based on an isolated incident. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions, an adverse counseling entry on another occasion, and positive urinalysis for illegal drug use. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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. Relief denied.

The discharge was proper and equitable. Relief denied.


Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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