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NAVY | DRB | 2003_Navy | ND03-00041
Original file (ND03-00041.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-00041

Applicant’s Request
The application for discharge review, received 20021007, requested that the characterization of service on the discharge be changed to honorable or 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 20030828. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My current reason for separation is misconduct due to drug abuse. My wife had a prescription for Ritalin and I took one pill to stay awake for class and it showed up as amphetamines on a drug test. I understand that my actions were inappropriate but I don't feel that my circumstances was as bad as abusing illegal drug as my current discharge papers suggest. I was very young when I enlisted and I would like a second chance to serve my country. I would appreciate any upgrade in my discharge status so that I may reenlist in the military.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990302 - 990331  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 990401               Date of Discharge: 000225

 Length of Service (years, months, days):

         Active: 00 08 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 95

 Highest Rate: SA

 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: 74

* No marks available
 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 :

990902:  Retention Warning: Advised of deficiency (Violation UCMJ, Article 86 (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990902:  NJP for violation of UCMJ, Article 86: Did on or about 1315, 990812, without authority, absent himself from his organization at which he was required to be, to wit: Service School Command, located at Naval Training Center, Great Lakes, IL, and did remain so absent until on or about 0530, 990816 (For a period of about 3 days, 14 hours and 15 minutes).
         Award: Restriction and extra duty for 4 days. No indication of appeal in the record.
991207:  Medical evaluation indicates Applicant had a positive urinalysis on 991025 and 991101 for amphetamines. Applicant found not dependent on drugs and alcohol.

991210:  UA from SSC Great Lakes, IL since 0600, 991210.

 991215:  NJP for violation of UCMJ, Article 112a: (2 Specs), Wrongfully use amphetamines.
Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
991215:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to pattern of misconduct.
991215:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
991221:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse (use).

000103:  Commander, Naval Training Center, Great Lakes authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

000222:  Surrendered to Military Authority at TPU Great Lakes, IL at 1320, 000222 from UA. Returned to military control at TPU Great Lakes, IL 1320, 000222. Retained onboard for disciplinary action and disposition.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia 20000225 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. While he may feel that youth and immaturity 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 general (under 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.

Concerning reenlistment, 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 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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