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NAVY | DRB | 2003_Navy | ND03-00136
Original file (ND03-00136.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND03-00136

Applicant’s Request
The application for discharge review was received on 20021104. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “My discharge was inequitable because it was based on one isolated incident within 14 months of service with no other adverse action.”

 Additional issues submitted by Applicant’s counsel/representative (American Legion):
“ 2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. ”
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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 920505               Date of Discharge: 930817

 Length of Service (years, months, days):

         Active: 01 03 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 72

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.80 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 3

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

 930201:  NAVDRUGLAB, Norfolk, VA reported Applicant’s urine sample, received 930113, tested positive for cocaine.

930202:  Applicant to unauthorized absence 0650, 930202.

930203:  Applicant from unauthorized absence 1036, 930303 (1 day/surrendered).

930203:  Applicant to unauthorized absence 1200, 930203.

930206:  Applicant from unauthorized absence 0930, 930206 (2 days/surrendered).

930211:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence, violation of UCMJ, Article 112A: Wrongful use of cocaine on 930113.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
930526:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ and all incidents of drug abuse. Applicant refused to sign.

930527:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. Applicant refused to sign.

930611:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of a serious offense.

930630:  BUPERS 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 19930817 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 states his discharge was based on one isolated incident in “14 months.” Even though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view such offenses as minor infractions in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP ) for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. 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 his discharge proper and equitable. Relief denied.

Issue 2. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. As this time, the Applicant has not provided any documentation for the Board to consider. Therefore, relief is not warranted.

 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, 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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