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NAVY | DRB | 2001_Navy | ND01-00929
Original file (ND01-00929.rtf) Auto-classification: Denied


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


ex-FC3, USN
Docket No. ND01-00929

Applicant’s Request
The application for discharge review, received 010716, 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 020130. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I was advised by my Navy Career Counselor that completion of a rehabilitation program, within six months of my discharge, is sufficient grounds for review and change of the discharge that I received. Thank you for your time and consideration in this matter of utmost importance.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Certificate of Completion (Substance Abuse & Aids Education Program)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        951219 - 971030  HON
                                              890122 - 951218  HON
                                              830125 - 890121  HON
         Inactive: USNR (DEP)     820919 - 830124  COG
Period of Service Under Review :
Date of Enlistment: 971031               Date of Discharge: 991027

 Length of Service (years, months, days):
         Active: 01 11 27
         Inactive: None
Age at Entry: 36                          Years Contracted: 2

 Education Level: 12                        AFQT: 85
Highest Rate: FC1

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.50 (2)    Behavior: 1.50 (2)                OTA: 2.43 (5.0 Evals)

 Military Decorations: None
Unit/Campaign/Service Awards: NAVY"E"RIBBON(3 RD ), GCA(3 RD ), JM, OSR, SSDR(4 TH ), NDSM Desert Storm/Shield, 9MM Pistol Expert, M14 Rifle Sharpshooter.

 Days of Unauthorized Absence: 2
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

971031:  Reenlisted onboard USS ESSEX (LHD 2) for 2 years.
980822:  NJP for violation of UCMJ, Article 86: UA from unit, on or about 0700, 980802 to 1130, 980802, violation of UCMJ Article 92: Failed to obey lawful order by wrongfully failing to maintain contact with and remain in company with designated liberty buddies.
Award: Forfeiture of $250.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.
980904:  Retention Warning: Advised of deficiency (CO's NJP on 990822), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990805:  Retention Warning: Advised of deficiency (CO's NJP on 990805), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990805:  NJP for violation of UCMJ, Article 86: (4 Specifications); Spec 1: UA 0700, 990720 to 0700, 990721(1day/S); Spec 2: UA 1000, 990723 to 1115, 990724(1day/S); Spec 3: Fail to go to division muster 0715, 990802; Spec 4: Fail to go to quarterdeck officer of the deck watch.
         Award: Forfeiture of $250.00 per month for 2 months (suspended for 2 months), restriction for 30 days, extra duty for 30 days (suspended for 30 days), reduction to E-5. No indication of appeal in the record.
990922:  NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 990913, tested positive for [Amphetamine/Methamphetamine].

 990923:  Punishment of forfeiture of $250.00 pay per month for 2 months suspended at CO's NJP of 990805 vacated this date due to continued misconduct.

990923:  NJP for violation of UCMJ, Article 86: UA from USS ESSEX 0700, 990910, until he surrendered 0855, 990910, violation of UCMJ Article 112a: Wrongful use of Amphetamine/Methamphetamine on or about 990911.
         Award: Forfeiture of $742.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
991012:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.
991012:          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.

991019:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

991022:  COMPHIBGRU THREE 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 991027 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).
Issue 1. 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, completion of rehabilitation programs, 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.


Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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