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NAVY | DRB | 2002_Navy | ND02-00579
Original file (ND02-00579.rtf) Auto-classification: Denied


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

ex-SKSA, USN
Docket No. ND02-00579

Applicant’s Request
The application for discharge review, received 020402, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 021217. 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. I feel that I was given an unfair discharge due to one mistake on my part. I had a perfect record up until this one incident of stupidity on my part and I believe that I have suffered enough for it. I am truly sorry and regret the decision that I made that fateful night. I served my country honorably through wartime and peacetime and I feel that my discharge was unjust. I believe my record and my accomplishments speak for themselves.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Evaluation Report & Counseling Record (4 pages)
Copy of Letter for Commendation
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930304 - 931130  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 931201               Date of Discharge: 970912

 Length of Service (years, months, days):

         Active: 03 09 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 month extension)

 Education Level: 12                        AFQT: 78

 Highest Rate: SKSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 2.33 (3)                OTA: 2.94

 Military Decorations: None

 Unit/Campaign/Service Awards: GCA, NDSM, SSDR(wb*), BATTLE"E"RIBBON, NM, AFM

 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 3630620.

 Chronological Listing of Significant Service Events :

950808   Counseling/warning entry for Physical Readiness Program Failure.

960425   Counseling/warning entry for failure to meet financial obligations; failure to provide adequate and continuous support for wife.

961023   Counseling/warning entry for Physical Readiness Program Failure.

970219   NJP for violation of UCMJ, Article 86: Leaving place of duty.
         Award: Reduction in rate to SA (suspended for 6 months); restriction and extra duties for 25 days (20 days suspended for 3 months).

970616:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession, introduction, distribution, manufacture of a controlled substance.
         Award: Forfeiture of $505.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

970708:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO's NJP held on 970609, for violation of UCMJ, Article 112a (Wrongful Use, Possession, Introduction, Distribution, Manufacture of a Controlled Substance).
970708:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
970708:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [SKSA E_ (Applicant) is being processed for an administrative separation from the U. S. Navy for misconduct due to drug abuse, violation of UCMJ Article 112a. Drug usage is not tolerated on board LA SALLE or in the Navy. All members are afforded training on the Navy’s policy for “Zero Tolerance” in basic training and in indoctrination training on board. SKSA _ (Applicant) has chosen to disregard this instruction, therefore I have no choice but to recommend SKSA E_ (Applicant) for an administrative discharge under OTHER THAN HONORABLE.]

970801   Commanding Officer advised BUPERS Applicant to be transferred to TPU Norfolk, VA pending separation authority.

970808:  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 970912 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 Board disagrees with the Applicant’s contention that his discharge was unfair. The receipt of commendatory awards and favorable performance evaluations during the Applicant’s enlistment does not guarantee him an honorable discharge. While the Applicant believes his record and his accomplishments speak for themselves, his performance prior to his drug use does not mitigate his use of illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant ’ s service record is marred by award of non-judicial punishment for use of a controlled substance. The record clearly reflects the Applicant ’ s disregard for the Navy ’ s Zero Tolerance Policy on drug use and demonstrated he was unsuitable for further service. Furthermore, 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. Relief denied.

The following is provided for the Applicant’s information: 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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