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NAVY | DRB | 2002_Navy | ND02-00655
Original file (ND02-00655.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00655

Applicant’s Request
The application for discharge review, received 020408, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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) This former member avers that it is inequitable for him to be ineligible to receive his MGIB educational benefits because of his characterization of service. On this basis, he opines that an upgrade to full honorable is warranted.

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, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, dated December 13, 2001 (2)
Letter from Applicant, undated (2)
Letter from Applicant, undated (2)
Card from National Institute of Technology (2)
Applicant's DD Form 214 (2)
Statement of military pay account, dated October 13, 2001 (2)
VA Form 21-22, dated December 13, 2001
Letter from the American Legion to the VA, dated February 14, 2002
Letter from American Legion to BCNR, dated March 18, 2002
Letter from Applicant , dated September 17, 2002
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980826 - 990802  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990803               Date of Discharge: 010507

 Length of Service (years, months, days):

         Active: 01 09 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 61

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 1.00 (1)                OTA: 2.33

 Military Decorations: None

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

 Days of Unauthorized Absence: 11

 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 :

000212:  Applicant on unauthorized absence on 0500-0815 12 Feb 00.

000229:  Applicant to unauthorized absence 0700, 29 Feb 00.
000301:  Applicant from unauthorized absence 0700, 1 Mar 00
(1 day/surrendered).
000321:  NJP for violation of UCMJ, Article 86: Unauthorized absence, failure to go to divisional quarters on 12 Feb 00.
         Award: Correctional custody for 30 days. No indication of appeal in the record.
[Extracted from CO's letter dated 000204.]
000321:  Retention Warning: Advised of deficiency (awarded Commanding Officer's nonjudicial punishment for violations of the UCMJ, Article 86, Failure to go to appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000516:  Applicant to unauthorized absence 0700, 16 May 00.

000517:  Applicant from unauthorized absence 0700, 17 May 00
(1 day/surrendered).
000531:  Applicant to unauthorized absence 0700, 31 May 00.

000601:  Applicant from unauthorized absence 0700, 1 Jun 00 (1 day/surrendered).

000811:  Applicant to unauthorized absence 0700, 11 Aug 00.

000819:  Applicant from unauthorized absence 1035, 19 Aug 00
(8 days/surrendered).
000911:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence, violation of UCMJ, Article 87: Missed ship's movement, violation of UCMJ, Article 92: Failed to obey other lawful order.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to AR. No indication of appeal in the record.
001001:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
001218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment, misconduct due to commission of a serious offense as evidenced by NJP of 1 October 2000 and 11 September 2000 and misconduct due to drug abuse as evidenced by all drug incidents in current enlistment.
001221:  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.
010111:  NJP for violation of UCMJ, Article 86 (2 specs): Failed to go to appointed place of duty, to wit: restricted men's muster on 19 and 20 Nov 00.
         Award: Bread and water for 3 days. No indication of appeal in the record.
010204:  Commanding Officer, USS ABRAHAM LINCOLN (CVN 72) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of serious offense and misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [AR J_ (Applicant) is incapable of adhering to the rules and regulations of the Navy and this command. He is simply unwilling to conduct himself as a productive member of this crew, and his continued presence on board is prejudicial to good order and discipline.]

010208:  COMCRUDESGRU 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 010507 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 has no authority to upgrade a discharge for the sole purpose of obtaining VA educational benefits. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use. 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. Relief denied.
Issue 2: T here 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. At this time the Applicant has not provided any documentation of good character and conduct to mitigate his misconduct while on active duty. 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 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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