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NAVY | DRB | 2001_Navy | ND01-00770
Original file (ND01-00770.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND01-00770

Applicant’s Request
The application for discharge review, received 010516, 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 a traveling panel closest to Chicago, IL or North Chicago, IL. 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 hearing are held in the Washington, DC Area. The Naval Discharge Review Board (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 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I, T____ E. D____ was told at the time of my discharge that if I waited a period of time that I could have my discharge status upgraded from Other Than Honorable to General under Honorable Conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     880209 - 880224  COG

 Period of Service Under Review :
Date of Enlistment: 880225               Date of Discharge: 890324

 Length of Service (years, months, days):

         Active: 00 11 09
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 73

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 27

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

880902:  NAVDRUGLAB, GREAT LAKES, IL urinalysis report indicates applicant tested positive for cocaine.

000000:         Counseling: Advised of deficiency (mustering late), notified of corrective actions and assistance available.

880829:  Retention Warning: Advised of deficiency (Poor military performance, without authority absent yourself from your organization, to wit: Service School Command, Great Lakes, Illinois), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880829:  NJP for violation of UCMJ, Article 86: UA from 0515, 880817 to 0500, 880824 [6days].
         Award: Forfeiture of $150.00 per month for 1 month, restriction and extra duty for 14 days, reduction to E-1. No indication of appeal in the record.

881024:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence.
         Specification 1: UA from 0515, 880919 to 1710, 881010 [21 days/S]; Spec 2: UA 0700, 881014 to 0200, 881018. Charge II: violation of the UCMJ, Article 112a: Between 880821 and 880824, wrongfully used a controlled substance, to wit: cocaine.
         Finding: to Charge I and the specifications 1 and 2 there under, guilty. To Charge II and specification there under, guilty.
         Sentence: Confinement for 25 days, forfeiture of $447.00 pay per month for 1 month ($223.00 pay per month suspended for 6 months.
         CA action 881024: Sentence approved and ordered executed.
881113:  Released from confinement and returned to full duty.

890118:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your Summary Court-Martial of 881024you’re your Chronological Record of Medical Care of 890111.
890126:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890224:  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.

890303:  Commanding Officer, Service School Command, Great Lakes recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890313:  Commander, Naval Training Center, Great Lakes authorized 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 890324 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).

 The applicant’s issue states that if he waited for a certain time period his Other Than Honorable discharge would be upgraded is untrue. The NDRB may change a discharge if there is an impropriety or inequity in the discharge assigned. After review of the applicant’s service record the Board found the Other Than honorable discharge accurately characterizes the applicant’s service. 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 he is living a life absent of illegal drug use, 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. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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