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NAVY | DRB | 2002_Navy | ND02-00965
Original file (ND02-00965.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00965

Applicant’s Request
The application for discharge review, received 020626, 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 030331. 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. Upon leaving the Navy without permission from my Commanding Officer, I became scared because I found out that I was going to have a baby. I didn't know how to tell anyone. I didn't want to go to jail. For having a baby not being married. Please allow me to have another chance to prove myself for you. I want this second chance just like I want to have eternal life with God. I know my system wasn't clean but I felt at that time it was the only thing I could turn to. I want help and need help to stay clean. Not just for me but for my darling daughter D_. She my world and I'll do anything for her and having a second chance in the United States Navy is everything. More then anything in the world. So many people wish they had that one chance I did. I made a mistake and have been living with it for 2 years. If I could go back I would do things different, but I can't so I just take it one day at a time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981104 - 990705  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990706               Date of Discharge: 000224

 Length of Service (years, months, days):

         Active: 00 07 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 108

 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 :

Xxxxxx:  Administrative Separation Review: Member deserted shortly after reporting onboard and was away for 4 months. Upon her return she disclosed that she was using drugs (marijuana) and it has been determined that is several months pregnant. She waived all rights [Extracted from case file].

000222:  NJP for violation of UCMJ, Article 83: Did on or about, 981104, at Oklahoma City MEPS, Oklahoma City, OK make a fraudulent enlistment by means of knowingly having a prior medical history, to wit: asthma, by deliberately concealing the this fact to gain procurement in the United States Navy, and did thereafter, at the Naval Recruit Center in Great Lakes, IL, receive pay and allowances under this enlistment; violation of UCMJ, Article 85: Desertion 0730, 991031 to 1200 000216, violation of UCMJ, Article 112a: Did on or about 000218, wrongfully use marijuana.
         Award: Forfeiture of $502.74 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000128:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all punishments under the UCMJ in your current enlistment; misconduct due to pattern of misconduct as evidenced by all punishments under the UCMJ during your current enlistment and misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ during your current enlistment [Extracted from case file].
000128:  Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights [Extracted from case file].
000222:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by one non-judicial punishment during the current enlistment, by reason of misconduct due to commission of a serious offence as evidenced by non-judicial punishment on 000222 for desertion, fraudulent enlistment and wrongful use of a controlled substance [Extracted from case file].

000223:  Commander, Amphibious Group TWO authorized 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 000224 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: 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. The Board found the Applicant’s age, education level, and test scores qualified her for enlistment. While she may feel that her pregnancy contributed to her actions, her service record is marred by award of non-judicial punishment (NJP) for illegal drug use, desertion and fraudulent enlistment thus substantiating the misconduct . The Applicant’s summary of service clearly reflects her disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating she was unsuitable for further service. An upgrade to general (under honorable) conditions would be inappropriate. Relief denied.

 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. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

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 recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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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