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NAVY | DRB | 2003_Navy | ND03-00037
Original file (ND03-00037.rtf) Auto-classification: Denied


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

ex-AMHAA, USNR
Docket No. ND03-00037

Applicant’s Request
The application for discharge review, received 20021004, 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. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. As the supporting documents that I have submitted demonstrate my post service conduct and accomplishments have been sufficiently creditable to warrant the Board's clemency relief with upgrade of my character of service.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Applicant dated September 27, 2002 (2 pages)
Supporting Documentation Listing
Delaware Technical Community College Certificate of Completion date March 2, 1988
Polytech Adult Education Center Certificate of Completion dated May 17, 1995
Polytech Adult Education Center Certificate of Completion dated April 8, 1995
 State of Delaware Certificate of Completion of Apprenticeship (Machinist) dated September 30, 1995
Character Reference Letter from R_ D. W_ dated September 24, 2002
Employment Reference Letter from R_ P_ dated September 25, 2002
Character Reference Letter from T_ L. M_ dated July 25, 2002
Character Reference Letter from J_ A_ date September 27, 2002
Reference Letter from J_ N. W_, Applicant's sister dated September 23, 2002 (3 pages)
Copies of Service Related Documents (49 pages)
Employment Reference Letter from R_ D. J_, JR dated October 2, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 841215               Date of Discharge: 871013

 Length of Service (years, months, days):

         Active: 02 04 07
         Inactive: 00 03 26

 Age at Entry: 22                          Years Contracted: 8

 Education Level: 12                        AFQT: 56

 Highest Rate: AMHAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)    Behavior: 4.00 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

850410:  Ordered to active duty for 48 months under the TAR enlistment program.
860712:  NJP for violation of UCMJ, Article 113: Sleeping on watch, violation of UCMJ, Article 92: Derelict in the performance of duties, violation of UCMJ, Article 112: Drunk on duty.
         Award: Forfeiture of $300.00 pay per month for 2 months, reduction to E-1. No indication of appeal in the record.

870320:  Special Court Martial
         Charge I: violation of the UCMJ, Article 112a, (3) Specifications.
         Specification 1: Wrongful possession of methamphetamines on 870127;
         Specification 2: Wrongful use of methamphetamines on 870122; Specification 3: Wrongful use of methamphetamines on 870127. Charge II: violation of the UCMJ, Article 92: Violate general order, possess drug paraphernalia on 870127.
         Findings: to Charge I and specifications 1, 2 and 3 thereunder, guilty. To Charge II and specification thereunder, guilty.
         Sentence: CHL for 120 days, forfeiture of $400.00 pay per month for 3 months, reduction to E-2.
         CA 870605: Sentence approved and ordered executed, strike the reduction from E-3 TO E-2, but the execution of that part of the sentence extending to confinement in excess of seventy days is suspended for twelve months from the date of trial, at which time, unless the suspension I sooner vacated, the suspended part of the sentence will be remitted without further action.

870320:  To confinement.

870409:  Substance Abuse Report: Medical Officer determined Applicant dependent, not amenable, recommended Level III treatment.

870517:  Released from confinement and restored to full duty.

870611:  Medical evaluation for drug abuse found the applicant not dependent on ETOH or drugs.
870618:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, to wit: Sleeping on watch, dereliction of duty, and drunk on duty; and misconduct due to drug abuse as evidenced by the wrongful possession of a controlled substance, to wit: Methamphetamine, misconduct due to drug abuse as evidenced by the wrongful use of a controlled substance, to wit: Methamphetamine (2 specifications), and misconduct due to drug abuse as evidenced by the wrongful possession of drug abuse paraphernalia.
870622:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
870728:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

870818:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

870904:  Assistant Secretary of the Navy (M&RA) directed the Applicant be discharged Other Than Honorable by reason of misconduct due to drug abuse.

870924:  CNMPC directed 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 19871013 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: 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Applicant did not provide sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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