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NAVY | DRB | 2002_Navy | ND02-00588
Original file (ND02-00588.rtf) Auto-classification: Denied


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

ex-BMSA, USN
Docket No. ND02-00588

Applicant’s Request
The application for discharge review, received 020329, 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 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was inequitable because it was based on one isolated incident in 29 months of service with no other adverse action.

Since my discharge from the navy I attended college, and had a good employment record, and am a productive member of society.
I have no criminal record.

I am a devoted husband & soon to be father.

I am a homeowner, voter & involved in my community.

I was a young man when I was in the Navy and as young men do, I made mistakes. My naval service was a very stressful time in my life.

Thank you very much or you time & effort reviewing my case.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
College transcript from University of Cincinnati dated August 3, 1994
Character reference dated July 6, 1995
Character reference dated June 22, 1995
Certificate from National Swimming Pool Foundation dated May 19, 1998
Certificate of Appreciation, undated
Applicant's resume

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     860731 - 861023  COG

 Period of Service Under Review :
Date of Enlistment: 861024               Date of Discharge: 890111

 Length of Service (years, months, days):

         Active: 02 02 18
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 63

 Highest Rate: BMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)    Behavior: 3.20 (2)                OTA: 3.30

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, MUC

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

861027:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 871027:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

880422:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 1 Apr 88, violation of UCMJ, Article 91: Willful disobedience of a petty officer on 1 Apr 88.
         Award: Forfeiture of $100 per month for 1 month, restriction for 45 days. No indication of appeal in the record.
880902:  NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongful use of cocaine on 21 Jul 88, (2) Wrongful use of THC on 21 Jul 88.
         Award: Forfeiture of $300 per month for 2 months, restriction for 60 days, reduction to BMSA. No indication of appeal in the record.
880916:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
880920:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.
880926:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881201:  CNMPC 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 890111 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 inequitable because it was based on one isolated incident. The Applicant’s service is marred by award of non-judicial punishment (NJP) on two occasions. The Applicant’s violations of the UCMJ include unauthorized absence; willful disobedience of a petty officer; wrongful use of cocaine and wrongful use of THC. Drug abuse alone warranted processing for separation, normally under other than honorable conditions. The record clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, his disregard for the Navy ’ s 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.

Issue 2: 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post-service accomplishments was found not to mitigate the conduct for which he was discharged. Relief denied.

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 recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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 " 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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