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NAVY | DRB | 2001_Navy | ND01-00988
Original file (ND01-00988.rtf) Auto-classification: Denied


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


ex-YNSN, USN
Docket No. ND01-00988

Applicant’s Request
The application for discharge review, received 010730, 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. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221. 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. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant separation under honorable conditions.
2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     910905 - 920803  COG
Period of Service Under Review :
Date of Enlistment: 920804                        Date of Discharge: 950510

 Length of Service (years, months, days):
         Active: 02 09 07
          Inactive: None
Age at Entry: 17 Parental Consent                Years Contracted: 4
Education Level: 12                                 AFQT: 45

 Highest Rate: YN3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)                      Behavior: 4.00 (3)                OTA: 4.00
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NAM
Days of Unauthorized Absence: 64

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620. Discharged in absentia.

 Chronological Listing of Significant Service Events :

931203:  Applicant arrested by Burton, Michigan Police Department on 3 counts: (1) carrying a concealed weapon in a motor vehicle, (2) open intoxicant, (3) operating a vehicle under the influence of alcohol. [Extracted from CO's letter dated March 22, 1995.]
940125:  Civil conviction in Flint Michigan Circuit Court: Applicant plead guilty to carrying a concealed weapon in a motor vehicle and counts two and three were reduced to reckless driving offense.
          Sentence: Reporting probation for 3 years, fine $709.00. [Extracted from CO's letter dated March 22, 1995.]
950203:  NAVDRUGLAB, Great Lakes, IL reports applicant's urine sample, received 950130, tested positive for THC.
950303:  NAVDRUGLAB, Great Lakes, IL reports applicant's urine sample, received 950222, tested positive for THC.
950306:  NJP for violation of UCMJ, Article 112A (2 specs): Wrongful use of a controlled substance.
         Award: Forfeiture of $557.70 per month for 2 months, extra duty for 45 days, reduction to YNSN. No indication of appeal in the record.
950306:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis tests, on 21 January 1995 and 16 February 1995.
950306:  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.
950307:  Applicant to unauthorized absence 0600, 7Mar95.

 950322:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): Seaman (applicant's) involvement with civil authorities as well as his disregard for the Navy's zero tolerance drug abuse policy as evidenced by his two positive random urinalysis screens is incompatible with continued service in the United States Navy. Seaman (applicant) is being processed for discharge from the service with a recommendation that the characterization of the discharge be other than honorable.
950413:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Discharged in absentia.

 950418:  Applicant declared a deserter.
950510:  Applicant returned from unauthorized absence 0800, 10May95 (64 days/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia, on 950510 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 Board found the applicant’s overall service record is not sufficient cause to upgrade the applicant’s discharge. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.
Issue 2. 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.


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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