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NAVY | DRB | 2002_Navy | ND02-00867
Original file (ND02-00867.rtf) Auto-classification: Denied


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

ex-GSMFA, USN
Docket No. ND02-00867

Applicant’s Request
The application for discharge review, received 020606, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Separ. Code / Re-code. 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 030410. 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. (Equity Issue) This former member proffers that his discharge is inequitable because members of his command including his administrative discharge board and commanding officer recommended that he be retained in service. On this basis, he opines that recharacterization of service period to 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:

Applicant's DD Form 214
Citation for June to August 2000
Evaluation Report and Counseling Record for reporting periods 00Jan14 to 00Jul15 and 00Jul16 to 01Jul08
Drug and Alcohol Program Advisor Administration Screening
Statement from Applicant
Character reference dated August 15, 2002
Character reference dated September 4, 2002
Statement from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980729 - 990628  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990629               Date of Discharge: 010716

 Length of Service (years, months, days):

         Active: 02 00 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: GSMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 2.50 (2)                OTA: 3.50

 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 :

010104:  NAVDRUGLAB, Jacksonville, FL reported Applicant's urine sample, received 001228, tested positive for THC.
010116:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 010104, to wit: THC.
         Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days, reduction to GSMFA. No indication of appeal in the record.
010125:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010125:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010322:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended retention.

010502:  Commanding Officer concurred with Administrative Discharge Board's findings and recommendation for retention.

010605:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) the Applicant's discharge from the naval service with a general (under honorable conditions) by reason of misconduct due to drug abuse (use).

010620:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant's separation from the naval service with a general (under honorable conditions) by reason of misconduct due to drug abuse (use).

010621:  CNPC directed the Applicant's discharge 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 010716 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).

Responding to the Applicant’s first issue, the Board noted that the member’s final characterization of discharge was determined by the Assistant Secretary of the Navy for Manpower and Reserve Affairs. The NDRB determined this was proper and equitable and found that the Applicant’s claim that his discharge should be upgraded to Honorable because his immediate chain of command recommended retention to be without merit. Relief denied.

 The Applicant’s representative submitted the following as issue 2: (EQUITY ISSUE), as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided two letters of recommendation as documentation of his post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance-free lifestyle , in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of good character and conduct. Therefore, no relief will be granted. The Applicant is reminded he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearings is not required but recommended. Relief denied.

The following is provided for the Applicant’s edification. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. However, only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.


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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