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NAVY | DRB | 2001_Navy | ND01-01116
Original file (ND01-01116.rtf) Auto-classification: Denied


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

ex-MTSN, USN
Docket No. ND01-01116

Applicant’s Request
The application for discharge review, received 010820, 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 the Board in the Washington National Capital Region. The applicant listed American Legion as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328. 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. (Equity Issue) His single violation of the UCMJ notwithstanding, this former member opines that his overall service record warrants discharge under honorable conditions.

2. (Equity Issue) This former members further requests that the Board include provision 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
VA Claim
Letter of Completion from Christian Fellowship Center (12-step program)
Character Reference Letter from R___ Y. S___, Colonel, IN (Ret)
Character Reference Letter from V____ T____, Vice Chairman of Town of Southington
Reference Letter from M___ W. C____, Pastor Tabernacle Christian Church
Documentations from VA (2pgs)
Letter from National Personnel Record Center
Copies from Service Record (29pgs)
Copy of Decisional Document from Electronic Reading Room (13pgs)
Copy of Discharge Review Information Printout (4pgs)
Conviction Information Request
Character Reference Letter from Trooper J____ D. T____
Character Reference Letter from Dr. J___G. L____


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        841210 - 870302  HON
         Inactive: USNR (DEP)     841017 - 841209  COG

 Period of Service Under Review :
Date of Enlistment: 870303               Date of Discharge: 890313

 Length of Service (years, months, days):

         Active: 01 09 21
         Inactive: None

 Age at Entry: 26                          Years Contracted: 6

 Education Level: 12                        AFQT: 50

 Highest Rate: MT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 2.73 (3)                OTA: 3.33

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDRw1b*, SSBN DPIw1s*

 Days of Unauthorized Absence: None

 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 :

870303:  Reenlisted onboard USS JAMES MADISON (SSBN-627) BLUE for 6 years.
881206:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $464.00 pay per month for 2 months, restriction to Charleston Naval Base for 60 days, reduction to E-4. No indication of appeal in the record.
881206:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of controlled substance (cocaine).

881208:  DAAR indicates applicant tested positive for cocaine on a random urinalysis. CAAC found the applicant dependent, amenable and eligible, recommended applicant be separated from service via VA hospital. Medical officer evaluation found applicant not dependent or eligible, and recommended applicant be separated not via VA hospital.

881214:  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.
890120:  COMSUBGRU 6 recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments: MT3 J____ was transferred to COMSUBGRU 6 on 881209 due to a positive random urinalysis. COMSUBGRU has determined that Petty Officer J___ has no potential for further worthwhile naval service.

890217:  CNMPC 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 890313 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 states: “(Equity Issue) His single violation of the UCMJ notwithstanding, this former member opines that his overall service record warrants discharge under honorable conditions.” The applicant’s overall service record includes a violation of UCMJ, Article 112A (wrongful use of a controlled substance). Navy regulations require mandatory processing for separation for use of illegal drugs, normally under other than Honorable conditions. The discharge was proper and equitable. Relief based on this issue is denied.

 Issue 2 states: “(Equity Issue) This former members further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.” 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 clemency, 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.


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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