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NAVY | DRB | 2002_Navy | ND02-00010
Original file (ND02-00010.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND02-00010

Applicant’s Request
The application for discharge review, received 010926, 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. Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20 June 2002. 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

1. Dear Chairperson:

 After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth by the appellant as follows, an upgrade of the current Other Than Honorable discharge to that of General, Under Honorable conditions. A review of the record reflects that the FSM served in the United States Navy from October 26, 1994 to September 3, 1996 at which time he received the current discharge by reason of misconduct due to drug abuse.
Of record are character reference statements attesting to the FSM's good character since discharge and statements from local law enforcement noting the absence of criminal and traffic violations. On entry the FSM was a young and impressionable teenager, who entered active duty and did well at first. For whatever reason, whether he was mis-guided by his peers, or still maintained a level of immaturity, he committed the inappropriate act(s) and has been punished for his actions. Currently, he has been able to turn his life around, attend school, maintain employment and good grades. It is therefore our request that the FSM be provided with equitable relief, in consideration of his post service activity. We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member 1 and 4)
Copy of police record check from City of Fostoria, OH dated February 26, 1999
Copy of college transcript dated December 22, 1998
Letter to Applicant from Owens Community College dated May 20, 1998
Character reference dated February 23, 1999
Three pages from Applicant's service
College transcript dated October 30, 2000 from Owens Community College
College transcript dated October 23, 2001 from Tiffen University
Statement from Applicant dated April 8, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     941004 - 941025  COG

 Period of Service Under Review :
Date of Enlistment: 941026               Date of Discharge: 960903

 Length of Service (years, months, days):

         Active: 01 10 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 53

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)    Behavior: 4.00 (1)                OTA: 3.67

Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BER

 Days of Unauthorized Absence: None

 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 :

960604:  Applicant to unauthorized absence 0600, 4Jun96.

960614:  Applicant from unauthorized absence 1130, 14Jun96 (10 days/surrendered).

960703:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, violation of UCMJ, Article 112A (2 specs): Wrongful use and possession of a controlled substance.
         Award: Forfeiture of $435 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
960722:  Drug and Alcohol Abuse Report: Marijuana abuse, July 3, 1996, ashore off duty. Consensual urinalysis. Medical recommended separation. Physician found Applicant not dependent and recommended separation. Commanding officer recommended separation. Comments 96Jul08 SR (Applicant) positive for marijuana, CO's NJP, VUCMJ Art 112a, (2 specs) wrongful use of marijuana and possess of marijuana. Awarded: 45 days restriction and extra duties, reduction in rate to E3, and FF $674.00 x 2 months. Due to the Navy's zero tolerance for drug abuse, SR (Applicant) processed for separation. Final DAAR this incident.
960903:  DD Form 214: Applicant discharged 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 960903 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 asserts that he was young and did a good job at the start of his career. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An other than honorable discharge is appropriate when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. A one time incident can serve to significantly outweigh the positive aspects of the member's service. T he Applicant’s service was marred by numerous minor infractions and the use of marijuana, a controlled substance, in violation of the Uniform Code of Military Justice and the Navy's Zero Tolerance Policy. The Applicant’s use of drugs, which forms the primary basis for determining the character of his service, reflects his willful use of a controlled substance and falls short of that required for an upgrade of his characterization of service. Relief is not warranted.
The following is provided for the benefit of the applicant. 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. Based on the severity of the applicant’s misconduct, the documents he provided were insufficient to justify upgrading 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 a discharge upgrade 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 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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