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NAVY | DRB | 2002_Navy | ND02-01019
Original file (ND02-01019.rtf) Auto-classification: Denied


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

ex-SK2, USN
Docket No. ND02-01019

Applicant’s Request
The application for discharge review, received 020715, 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 list any 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: 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. My type of discharge was unfair because I was very hard working and dedicated sailor, I received a good conduct medal, Navy & Marine Achievement Medal, Letter of Appreciation, advanced from E-1 to E-5 and was selected 1 of 8 out of 300 plus to have Thanksgiving dinner with the American Ambassador of Tunisia while on deployment in the Med in 2000. I think my contribution to the Navy and my hard-work & accomplishments while in the Navy far outweighs one stupid mistake that I regret dearly.

2. My punishment was too extreme considering the time I had left in the Navy (1 month). Loosing my MGIB & benefits was divesting enough. I have found over the past 15 months that it is very difficult to be considered for a decent job in the civilian world with an other than honorable discharge. Hopefully with a discharge upgrade I can get a new start and improve my quality of life because it's been very hard to succeed.

3. My discharge was inequitable because it was based on one isolated incident in 48 months of loyal service with no prior offenses.


 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)     961025 - 970105  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970106               Date of Discharge: 010507

 Length of Service (years, months, days):

         Active: 04 04 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 41

 Highest Rate: SK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.93

 Military Decorations: NMCAM

 Unit/Campaign/Service Awards: SSDR (2), BER, GCM

 Days of Unauthorized Absence: None

 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 :

010309:  NAVDRUGLAB, Jacksonsville, FL reported Applicant’s urine sample, received 010305, tested positive for THC.



010406:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 020227.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
010416:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010416:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
010417:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer comments: "Due to the severity of this offense and the navy's zero tolerance policy concerning drug abuse, [Applicant] has no potential for future naval service and is recommended for an Other Than Honorable discharge."

010424:  COMNAVPERSCOM directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). [Extracted from DD Form 214, Block 25.]

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 Applicant contends that the characterization of service he received when he was discharged is inequitable as his various professional accomplishments, including a personal decoration and accelerated advancement, outweigh the single mistake he made which led to his separation. With regard to separation, drug abuse (use) warrants a characterization of service normally under other than honorable conditions. A characteriza-tion of honorable or general (under honorable conditions) is not authorized unless a Sailor's record is otherwise so meritorious that an other than honorable characterization clearly would be inappropriate. The records the Board reviewed showed there to be credible evidence of the Applicant's illegal drug use and, further, that there were no mitigating or extenuating factors or any entries so meritorious as to warrant an upgrade of the Applicant's discharge. Relief on this basis is denied.

Issues 2 and 3: The Applicant contends that his discharge was inequitable as it was based on one isolated incident one month prior to the completion of a 4-year period of service in which there were no other disciplinary infractions. Generally, characterization will be based upon the member's total performance of duty and conduct during the current enlistment. There are circumstances, however, where the conduct or performance of duty reflected by a single incident may form the basis of characterization. A single adverse incident that is prejudicial to good order and discipline, such as the Applicant's positive urinanalysis and subsequent nonjudicial punishment for drug use, may be used to characterize a Sailor's overall service. While the Board recognizes the positive aspects of the Applicant's record, including his time in service, these factors do not mitigate his misconduct. Relief on this basis is also denied.

The following is provided for the edification of the Applicant. T here is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized, however, 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 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided documenta-tion for the Board to consider an upgrade to his discharge.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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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