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NAVY | DRB | 2002_Navy | ND02-00421
Original file (ND02-00421.rtf) Auto-classification: Denied


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


ex-FR, USN
Docket No. ND02-00421

Applicant’s Request
The application for discharge review, received 020221, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. The Applicant requested a personal appearance discharge review before a traveling panel closest to Irvington, NJ 07111. The Applicant listed the American Legion as the 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, D.C. area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030107. 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. (Equity Issue) While this former member regrets his misconduct of record, he nonetheless opines that his service record supports a discharge under honorable conditions.
2. (Equity Issue) This former member further requests that the Board include provisions 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 (there was no discharge package available for review), the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990830 - 990919  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 990920               Date of Discharge: 010209

 Length of Service (years, months, days):
         Active: 01 04 20         Does not exclude lost time
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 37
Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 2.67

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 2
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 :

001126:  Applicant to unauthorized absence 0730, 001126.

 001128:  Applicant from unauthorized absence 0600, 001128 (2 days/surrendered).
001208:  NJP for violation of UCMJ, Article 86: No further information found in service record.
         Award: No indication of appeal in the record.
010122:  Vacated suspended forfeiture of $563.00 for 2 months awarded at CO's NJP dated 001208 due to continued misconduct .
010122:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: marijuana.
         Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days, reduction to FR. No indication of appeal in the record.
010209:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority: NAVMILPERSMAN, Article 1910-146.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010209 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. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. Relief denied.
Issue 2. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation 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. Relief not warranted.

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. 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 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 " afls14.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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