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NAVY | DRB | 2002_Navy | ND02-00230
Original file (ND02-00230.rtf) Auto-classification: Denied


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

ex-AKAR, USN
Docket No. ND02-00230

Applicant’s Request
The application for discharge review, received 020109, 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 or a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Application accepted as a documentary review.

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. My discharge is improper because I believe that I deserve to have a Honorable because I took pride in my duties for serving my country. I believe my discharge is improper because I worked hard at trying to stay in. I wrote to the destroyer group 5, I re-wrote a letter to my Commanding Officer, and I had total support from my chain of command. My main purpose for wanting my discharge changed from General (Under Honorable Conditions) is because I really would like to continue a career in the military because I know that I can be my countries ambassador and leader, also a role-model to young children over me. I believe the reason why the admin board members awarded me a(n) General (Under Honorable Conditions) is because they believe that I did not purposely use marijuana. I know the board members really wanted to retain me, and I believe I should be retained into the Armed Forces. My discharge was improper because I know I deserve to be part of the many that served and would like to serve and have that label of being a(n) “Honorable service member.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Certificate of Completion (Airman Apprentice Training Course)
Copies of DD Form 214 (3)
Copy of DEP Acceptance Certificate
Copy of Commanding Officers Report of Administrative Separation (3 pgs)
Copies of Service Related Documents (116 pgs)
Copy of Marriage License
Copy of Son's Birth Certificate
Copy of High School Diploma
Copy of Social Security Card

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     990622 - 990628  COG

 Period of Service Under Review :
Date of Enlistment: 990629               Date of Discharge: 010731

 Length of Service (years, months, days):

         Active: 02 00 03
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

000419:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on or about 000416, by wrongfully consuming alcohol under the age of 21 years.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.

000523:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 92, failure to obey a lawful order, consuming alcohol while under the age of 21 years), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001122:  NAVDRUGLAB, JACKSONVILLE, FL urinalysis report indicates applicant tested positive for THC.
001207:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 001108.
Award: Forfeiture of $563.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Appealed 001215. Appeal denied 010129.
001211:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct.
001211:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010703:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct and misconduct due to drug abuse, and by unanimous vote, found no misconduct due to commission of a serious offense, that the misconduct warranted separation, and recommended discharge with a general under honorable conditions.

010726:  Commanding Officer recommended discharge with a general under 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 010731 with a 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).

Issue 1: The Board could discern no impropriety or inequity in the official record and therefore considered the applicant’s discharge was proper and equitable. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. A general (under honorable conditions) discharge is warranted when significant negative aspects of a members conduct outweigh the positive aspects of the member’s military record. The applicant’s service was marred by award of non-judicial punishment (NJP) on two occasions. The applicant’s misconduct reflects his willful disregard for the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry or reinstatement into the Naval services. Neither a less than fully honorable discharge, nor an unfavorable “RE” code is, in itself, a bar to reenlistment. 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 applicant’s edification. T he NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. However, there is no law or regulation that 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. 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. 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.


Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until Present, 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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