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NAVY | DRB | 2002_Navy | ND02-01334
Original file (ND02-01334.rtf) Auto-classification: Denied


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

ex-HR, USN
Docket No. ND02-01334

Applicant’s Request
The application for discharge review, received 20020920, 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 20030812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no inequity in the characterization of the Applicant’s service was discovered by the NDRB. However, an impropriety was discovered. Therefore, the Board’s vote was unanimous that the character of the discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I have received an other than honorable discharge for a mistake I made and I have paid my debt to myself and the United States Navy for my actions. I know I made a mistake. I let situations of my career and my personal life get to me and I made a bad decision which I should not have made. I ask that you would review my case and upgrade my discharge so I can restore my good name and have a good career. I feel that even though I made a mistake I paid my dues and learned from the experience, and do not feel I should be punished my whole life for an issue that has already been dealt with and resolved. I also feel that I did not get a chance to redeem myself my discharge was based on the only incident on my service record in my less than 24 months of service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214
Character reference, dated March 21, 2002
Character reference, dated March 15, 2002
Character reference from Applicant 's aunt, dated March 16, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980120 - 980514  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980515               Date of Discharge: 000128

 Length of Service (years, months, days):

         Active: 01 08 14
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: HA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

 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 :

991119:  NJP for violation of UCMJ, Article 112A: Wrongful use of THC on 991018, a schedule II controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to HR. No indication of appeal in the record.
991221:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
991221:  Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
000114:  Commanding Officer directed discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): Administrative separation in the case of HR ( Applicant ) is hereby approved. Member is not able to perform military duties as required by reason of Article 112a, wrongful use, possession, or distribution of controlled substances. Date and characterization of discharge: 28 January 2000, Other Than Honorable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000128 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 equitable but not proper (C and D).

 Issue 1. There is credible evidence in the record that the Applicant used illegal drugs, and therefore, discharge processing was mandatory and equitable. However, the separation authority was ineligible to direct the Applicant’s discharge under other than honorable conditions. Due to this impropriety, the Board voted to upgrade the Applicant’s discharge, as warranted by his service record, to Under Honorable Conditions (General). Characterization of service of Under Honorable Conditions (General) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ) – drug use. Relief granted.

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. 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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