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NAVY | DRB | 2002_Navy | ND02-00189
Original file (ND02-00189.rtf) Auto-classification: Denied


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

ex-DCFN, USN
Docket No. ND02-00189

Applicant’s Request
The application for discharge review, received 011227, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020912. 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, as submitted

1. My discharge was inequitable due to the fact that it was a isolated incident in a total of 5 years 4 months of service as shown by my evaluations throughout my tours.

2. I am trying to enlist in the Army, and am trying change my separation code to one that will allow that.

3. This incident has not, and will not, happen again. Thank you for your time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881018 - 890110  COG
         Active: USN                        890111 - 930110  HON
         Inactive: USNR-R                  930111 - 950220  HON

 Period of Service Under Review :
Date of Enlistment: 950221               Date of Discharge: 960614

 Length of Service (years, months, days):

         Active: 01 03 24
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 67

 Highest Rate: DC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.00 (2)                OTA: 3.00
 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 2.86

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, KLM

 Days of Unauthorized Absence: 1

 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 :

950809:  Applicant commences a period of unauthorized absence, 0700, 9Aug95.

950810:  Applicant returns from unauthorized absence 0715, 10Aug95 (1 day/surrendered).

950816:  Applicant commences a period of unauthorized absence 0715-0725, 16Aug95.

960215:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960209, tested positive for THC.

960311:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

960405:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana between 25Jan96 and 30Jan96.
         Award: Forfeiture of $556 of pay per month for 2 months, restriction and extra duty for 45 days, reduction to DCFN. No indication of appeal in the record.
960408:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment imposed on 5 April 1996 for violation of the UCMJ, Article 112a, wrongful use of marijuana on or between 25 and 30 January 1996.
960408:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
960418:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Failure to go to appointed place of duty at 0630, 10Apr96, to wit: restricted men's muster, (2) Failure to go to appointed place of duty at 0630, 13Apr96, to wit: restricted men's muster, (3) Failure to go to appointed place of duty at 1100, 20Apr96, to wit: restricted men's muster,
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
960426:  Drug and Alcohol Abuse Report: Marijuana abuse. Random urinalysis 960209. Physician found Applicant not dependent and recommended separation not via VA hospital. Commanding Officer recommended separation not via VA hospital. Comments: Member has an average work history with no potential for further productive service.

960511:  Commanding Officer, USS CARL VINSON (CVN-70) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960607:  BUPERS 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 960614 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).

Issues 1 and 3: The Applicant states his discharge was inequitable because it was based on an isolated incident. The isolated incident he is referring to is the use of marijuana. The Applicant submitted to a urinalysis, which resulted in a positive finding for use of a controlled substance. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant was processed according to the rules and regulations existing at the time of his discharge. The discharge was proper and equitable. Relief is denied.

The Applicant states he had completed over 5 years of service prior to this his drug abuse. The Naval Discharge Review Board is only authorized to examine the enlistment during which the discharge was awarded. Prior honorable service is not a basis for relief.

Issue 2: Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment or service in another branch of the armed forces. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

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. 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. Relief denied.

 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is 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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