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NAVY | DRB | 2002_Navy | ND02-00943
Original file (ND02-00943.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND02-00943

Applicant’s Request
The application for discharge review, received 020619, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030314. 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. Dear Service members:

I am requesting that my discharge be upgraded to an "Honorable Discharge" due to the fact that my discharge is based on one incident in my 23 months of service. Up to that unfortunate mistake I served as an excellent example as a Naval Petty Officer and hope that my Naval record would reflect my entire service, rather than one incident that I regretfully made. Thank you for your consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Copy 4 and Copy 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     951130 - 960812  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960813               Date of Discharge: 980729

 Length of Service (years, months, days):

         Active: 01 11 17
         Inactive: None

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

 Education Level: 12                        AFQT: 90

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF*            OTA: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: Navy Expert Rifle Medal

 Days of Unauthorized Absence: None

* No Marks found

 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 :

980513:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance, violation of UCMJ, Article 86: Absence without leave.
         Award: Oral reprimand, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
980611:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
980618:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980706:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

980713:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [Fireman R_ (Applicant) was awarded non-judicial punishment on 13 May 1998 for unauthorized absence from 0700, 13 April 1998 to 0900, 13 April 1998 and wrongful use of marijuana on 13 April 1998. Fireman R_'s (Applicant ’ s) serious misconduct cannot be tolerated and is detrimental to the good order and discipline of this command and the Navy. Fireman R_ (Applicant) possesses no potential for further Naval service. I strongly recommend that Fireman R_ (Applicant) be separated from the Naval service with a characterization of service as other than honorable.]

980716:  Commander, Submarine Group TWO message of 16 July 98 directed the Applicant's discharge. [EXTRACTED FROM APPLICANT'S DD FORM 214.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980729 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 found the Applicants discharge equitable and appropriate. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. The Applicant claims that up until the unfortunate mistake that resulted in his discharge, he served as an excellent example as a Naval Petty Officer, however, promotions and favorable performance evaluations during a service member ’ s enlistment, do not guarantee an honorable discharge. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor. The Applicant ’ s service is equitably characterized as being performed under other than honorable conditions due to his own misconduct. 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. Relief denied.

 The following is provided for the Applicant ’ s information: 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.

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 18, effective 12 Dec 97 to 19 May 99, 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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