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NAVY | DRB | 2002_Navy | ND02-00129
Original file (ND02-00129.rtf) Auto-classification: Denied


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


ex-SM3, USN
Docket No. ND02-00129

Applicant’s Request
The application for discharge review, received 011022, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Portsmouth, VA. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application for review the applicant obtained American Legion as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020701. 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, as submitted

 1. (Equity Issue) This former member 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:
Employment Reference Letter
Character Reference Letter
 Copy of Performance Appraisal (4 pages)
Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        810528 - 850527  HON
          Inactive: USNR (DEP)     None
Period of Service Under Review :
Date of Enlistment: 850528               Date of Discharge: 880513

 Length of Service (years, months, days):
         Active: 02 11 16 (does not exclude UA)
          Inactive: None
Age at Entry: 23                          Years Contracted: 6

Education Level: 12                        AFQT: 52
Highest Rate: SM1

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.36 (5)    Behavior: 3.52 (5)                OTA: 3.60

 Military Decorations: None
Unit/Campaign/Service Awards: GCA, NEM, NUC, SSDR (2 ND )

 Days of Unauthorized Absence: 93
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 :

850528:  Reenlisted at CGN 38 Virginia for 6 years.
871121:  NJP for violation of UCMJ, Article 86: Absence without leave from 0800, 871006 until 1400, 871106 (30 days/S), violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $500.00 pay per month for 2 months, reduction to E-5. No indication of appeal in the record.
880229:  NJP for violation of UCMJ, Article 86: (5 Specs ), Unauthorized absence, Spec 1 : Did on or about 0745, 871202 without authority absent himself from his unit until 1800, 871202; Spec 2 : Did on or about 0745, 880104 without authority absent himself from his unit until 0825, 880106 (2 days); Spec 3 : Did on or about 0745, 880119 without authority absent himself from his unit until 1100, 880119; Spec 4 : Did on or about 0745, 880128 without authority absent himself from his unit until 0745, 880201 (4 days); Spec 5 : Did on or about 0745, 880202 without authority absent himself from his unit until 0745, 880229 (27 days/S).
         Award: Forfeiture of $564.90 per month for 1 month, reduction to E-4. No indication of appeal in the record.
880229:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and evidence by commission of a serious offense.
880229:  Applicant advised of rights and having elected 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 and the right to submit statements on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened.
880321:  Drug dependency screening determined that applicant was found not dependent.
880323:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and as evidenced by commission of a serious offense.

880418:  Applicant declared a deserter on 880415 having been an unauthorized absentee since 0730, 880316 from NAVCRUITDIST New York, NY.
880425:  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 in absentia, 880513 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 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, 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 15560A), effective 15 Jun 87 until
10 Jan 89, 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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