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NAVY | DRB | 2002_Navy | ND02-00186
Original file (ND02-00186.rtf) Auto-classification: Denied


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

ex-PN3, USN
Docket No. ND02-00186

Applicant’s Request
The application for discharge review, received 011226, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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: GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I received a General (Under Honorable Conditions) discharge based on one isolated incident in over 14 years of active duty. At no time previously in my career did I ever receive any type of NJP or undergo any other adverse action.

2. (VFW Issue) Change discharge to Honorable.

3. (VFW Issue) The Applicant was a model sailor as evidenced by his prior performance evaluations and numerous decorations. His Commanding Officer recommended his retention on active duty because he had over 15 years excellent service and his strong contribution to the Navy.

4. (VFW Issue) We concur with the Applicant contention that his discharge should be upgraded to honorable. Furthermore we feel that the action taken against the Applicant was inequitable since this was his first offense after all those excellent years of service.


 Documentation
In addition to the service record, only a PARTIAL DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (2)
Copy of DD Form 214 (Prior Service) (2)
Copy of CO's Recommendation for Separation (2pgs)
Copy of Honorable Discharge Certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     830107 - 83XXX   ELS
         USNR (DEP       830504 - 830517  COG
         Active: USN                        830518 - 870515  RELACDU
         Inactive: USNR            870516 - 880821  COG (to enlist USN)
 Inactive: USNR (DEP)     880822 - 890301  COG
          Active: USN                        890301 - 940407  HON

 Period of Service Under Review :
Date of Enlistment: 940408               Date of Discharge: 990813

 Length of Service (years, months, days):

         Active: 05 04 05
         Inactive: None

 Age at Entry: 37                          Years Contracted: 3

 Education Level: 16                        AFQT: 93

 Highest Rate: PN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 4.00 (1)                OTA: 3.80 (4.0 Evals)
 Performance: 3.00 (4)    Behavior: 3.50 (4)                OTA: 3.11 (5.0 Evals)
Military Decorations: None

 Unit/Campaign/Service Awards: NAM, NMCAM, GCM(4), AFEM(3), NAVY"E"BATTLE(3), MUC(4), NUC, NDSM, KLM, NEM, MUC, SSDR(3)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.


 Chronological Listing of Significant Service Events :

940408:  Reenlisted onboard USS SHILOH (CG-67) for 3 years.

 990408:  NJP for violation of UCMJ, Article 107: False Official Statements), violation of UCMJ, Article 112a: Wrongful use/possession of a controlled substance, to wit: steroids.
         Award: Forfeiture of $742.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-4. No indication of appeal in the record.
990622:  Counseling warning given in which he chose to accept drug rehabilitation treatment [Extracted from CO's message in case file].

 No Date:         An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general under honorable conditions [Extracted from CO's message in case file].

990628:  Commanding Officer recommended discharge by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense for making a false official statement. However, due to administrative oversight by the Legal Officer, the charge was not included in the administrative separation process. Applicant’s false official statement was subsequently addressed at the administrative board proceedings.

990712:  COMNAVSURFPAC SAN DIEGO CA directed the Applicant's discharge general under 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 990813 general under 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).

The Applicant states he received a general discharge based upon one isolated incident in over 14 years of active duty. The Board is only authorized to examine the period of enlistment during which the discharge was awarded. Honorable prior service is not a cause for relief.

Issues 1 through 5: The Applicant asserts one isolated incident during his overall outstanding service warrants an upgrade to his discharge. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General 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 the use of 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 disregard for the orders and directives that regulate good order and discipline in the Naval Service, 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, 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 any of these documents.

The Applicant is reminded 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. Legal representation at a personal appearance hearing is recommended, but not required.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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, Room 309
                  Washington Navy Yard DC 20374-5023

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