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NAVY | DRB | 2001_Navy | ND01-00850
Original file (ND01-00850.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND01-00850

Applicant’s Request
The application for discharge review, received 010612, requested that the characterization of service on the discharge be changed to honorable or 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 020110. 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. Since a little boy, I wanted to serve my country and join the Navy. While in the Navy, I was a model seaman. I was HONORABLE discharged and re-enlisted. I served my country with great pride and even became injured and service connected while doing so. I am currently 0% SC for back injury. Unfortunately, at ONE isolated point in my career, I was unsure how to deal wit the tragedies that came my way. When my mother died, I became depressed and turned to drugs for comfort. My drug use ONE ISOLATED INCIDENT throughout my career. I quickly realized that my behavior was not productive and I attended and completed a rehabilitation program to correct and transform my life. After successful completion of a drug rehabilitation program in San Francisco, I was discharged from the Navy with an 'other than honorable 'discharge. The discharge I received may have been justified at the time of my drug use, but I am a changed man and would like to have this negative cloud removed from my record.
Since completion of the drug program, I have done my best to make an honest contribution to my community and discourage drug use to anyone around me. I have remained full time employed, attended college and graduated with my certificate in Engineering. The thing I did to deal with my problems before, I do not do anymore. Rather than be depressed about the death of my mother, I have (through time) learned to be proud of the life she lived and times we shared. I am requesting that my discharge be upgraded to HONORABLE or Under Honorable Conditions. Thank you for your time and consideration. *My discharge was inequitable because it was based on one isolated incident in over 4 years of service with no other adverse action.

 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                        900319 - 940318  HON
         Inactive: USNR (DEP)     900125 - 900318  COG

 Period of Service Under Review :
Date of Enlistment: 940319               Date of Discharge: 941124

 Length of Service (years, months, days):

         Active: 00 07 28
         Inactive: None

 Age at Entry: 27                          Years Contracted: 3

 Education Level: 12                        AFQT: 25

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)    Behavior: 3.30 (2)                OTA: 3 .60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(3 RD ), BATTLE"E", NUC, SASM(3 RD ), AFEM, GCA

 Days of Unauthorized Absence: 7

 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 :

940319:  Reenlisted on board USS WHITE PLAINS (AFS-4) for 3 years.

 940823:  NJP for violation of UCMJ, Article 86: Absent without leave on or about 0730, 940815 to 1300, 940823, violation of UCMJ, Article 1112a: Wrongful use of controlled substance on or about 940726.
         Award: Forfeiture of $217.77 pay per month for 1 month, restriction and extra duty for 14 days, reduction to E-2. No indication of appeal in the record.
940824:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment on 940823.
940824:  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.

940901:  Medical evaluation for drug abuse found the applicant to be psychological/physically dependent.

940902:  DAAR indicates cocaine abuse as a result of a unit sweep urinalysis, found dependent, not eligible, recommended for separation via VA Hospital.

940912:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

940923:  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 941117 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).

 Issue 1. The applicant’s letter describes the circumstances surrounding his discharge. The applicant’s issue states that the discharge was inequitably assigned because it was based on one isolated incident in over 4 years of service with no other adverse action. The NDRB found the other than honorable discharge accurately characterizes the applicant’s service. The applicant was found guilty at NJP for violating UCMJ, Article 112A (wrongful use of illegal drugs), which normally results in discharge with an Other Than Honorable characterization. The negative aspects of the applicant’s service outweighed his positive contributions. The discharge is proper and equitable. Relief is not warranted.

 The NDRB is authorized to consider post-service factors in the recharacterization 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 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 no longer uses illegal drugs, he volunteers his services to support his community, he has a favorable employment history, and a clean police record. The discharge was proper and equitable. Relief is not warranted.

The applicant remains 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 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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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