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NAVY | DRB | 2002_Navy | ND02-01071
Original file (ND02-01071.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND02-01071

Applicant’s Request
The application for discharge review, received 020723, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed a Veterans Benefits Counselor as the representative on the DD Form 293. The Veterans Benefits Counselor informed the Board that he would not be representing the Applicant. On March 27, 2003, the Board gave the Applicant the opportunity to obtain another representative and Applicant was advised if a representative were not obtained by April 30, 2003, the case would be processed without a designated representative.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 030612. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Please review about my service record when I'm still active in the service. I think I'm doing good in the service I believe I got misconduct when the discharge me but I'm not satisfied what I get. Because they never review my record from past. Aside for that my command they never send my to alcohol or drug problem counseling or rehabilitate & my discharge was not properly characterized as honorable ASWAUTH (A69.06) I was not properly counseled about the discharge, ASWAUTH (A70.08) I’m guilty w/the offense but w/explanation through my family’s problem when I got divorce. Veterans members receive 3 rd time good conduct awards. I think I deserved to receive to change my discharge to honorable to meet employment benefits & to allow some service benefits. As a veterans for over 16 yrs my command reject me to retired in the service w/out any compensation given. I'm doing this by my own. Thank you!

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214 (current enlistment)
Applicant's DD Form 214 (previous enlistment)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: USNR              800318 - 840311  HON
                  USN                       840312 - 910306  HON

 Period of Service Under Review :
Date of Enlistment: 910307               Date of Discharge: 960708

 Length of Service (years, months, days):

         Active: 05 04 02
         Inactive: None

 Age at Entry: 36                          Years Contracted: 4 (27 months extension)

 Education Level: 12                        AFQT: 37

 Highest Rate: MS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.96 (5)    Behavior: 4.00 (5)                OTA: 3.96

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (3), NDSM, AFEM, SSDR (2)

 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 3630600.

 Chronological Listing of Significant Service Events :

940412:  Applicant's enlistment extended for 27 months.

 951012:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 1100-1600, 951004, violation of UCMJ, Article 92: Failed to obey a lawful order issued by MSC at 1100, 951004, to wit: to stay on board until 1600, 951004, to assist in maintenance and upkeep work.
         Award: Forfeiture of $150 per month for 1 month, restriction for 30 days, reduction to MS3. Reduction suspended for 6 months. No indication of appeal in the record.
951012:  Retention Warning: Advised of deficiency (Absence without leave and failure to obey lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
         
960129:  NAVDRUGLAB, San Diego, CA reported Applicant's urine sample, received 960119, tested positive for methamphetamine.

960206:  Vacate suspended reduction to MS3 due to continued misconduct.

960206:  NJP for violation of UCMJ, Article 112A: Wrongfully use methamphetamine, a Schedule II controlled substances between 1945, 960106 to 0215, 960107.
         Award: Forfeiture of $581 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSN. No indication of appeal in the record.
960415:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by punishment under the UCMJ, in your current enlistment and by reason of misconduct due to the commission of a serious offense as evidenced by punishment under the UCMJ in your current enlistment.
960415:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960419:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed drug abuse and a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960514:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960703:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960708 under other than honorable conditions for misconduct due to commission of a serious offense (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. While he may feel that his personal problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on two separate occasions thus substantiating the misconduct . It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied. For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or benefit opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Relief denied. However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous seven years of honorable active duty service.

 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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