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NAVY | DRB | 2002_Navy | ND02-00208
Original file (ND02-00208.rtf) Auto-classification: Denied


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

ex-ICFA, USN
Docket No. ND02-00208

Applicant’s Request
The application for discharge review, received 020108, 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I (applicant) (civilian) wish to have my current discharge upgraded from other than honorable to honorable. I ask this of the board because I want to re-enlist in the Navy.
My reason for other than honorable discharge was for use of a controlled substance. I had many family and financial problems during my enlistment and made a bad decision to use marajuana. The use occurred only once. I never tested positive for a controlled substance during my enlistment, nor have I used a controlled substance prior to or after that incident. The occurrence was only once in my life. Because of this, a military DAPA representative determined that there was no reason for counseling. When the usage occurred, I reported immediately to my command and confessed my sins. I was given an urinalyses and the result was negative. However, I was punished by MJP, given 45 days restriction, 45 days extra duty, reduction in rank, garnishment of wages by 1/2 month x 2 months, and received an other than honorable discharge. Since then, I have gone back to school, and tried to get a decent job. But, a good job is impossible with my current discharge. I have taken care of my family and financial problems. I pray daily that the Board will grant me an honorable discharge so that I may re-enlist and carry on my service to this great nation. Once again, I ask the Board to upgrade my discharge from other than honorable to honorable, and send me an updated DD 214 so that I may reenlist in the Navy and carry on my service to this country. Thank you

 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):
         Active: None
         Inactive: USNR (DEP)     970721 - 980714  ELS
                  USNR (DEP)      981219 - 990207  COG

 Period of Service Under Review :
Date of Enlistment: 990207               Date of Discharge: 001227

 Length of Service (years, months, days):

         Active: 01 10 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 47/48

 Highest Rate: ICFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.83

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

001016:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 18Sep00, to wit: marijuana.
         Award: Forfeiture of $641.17 per month for 2 months, restriction and extra duty for 45 days, reduction to ICFA. No indication of appeal in the record.
001126:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
001126:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
001127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): ICFA (applicant) has been onboard CHIEF for 10 months. During his time onboard he has performed adequately with no prior disciplinary problems. However, ICFA (applicant) violated the Navy's zero tolerance policy. ICFA (applicant) has no potential for future Naval service, recommend separation.

001220:  Commander, Mine Warfare Command 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 001227 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 used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Board found that the applicant’s statements to the Board concerning his drug use and the incident report concerning the circumstances surrounding the applicant’s drug use that led to his receiving non-judicial punishment were markedly different. The discharge was proper and equitable. Relief denied.

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. Relief denied.

The applicant 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. Legal representation at a personal appearance hearing is highly recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, 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 Rm 309
                  Washington Navy Yard DC 20374-5023

 _

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