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NAVY | DRB | 2003_Navy | ND03-00539
Original file (ND03-00539.rtf) Auto-classification: Denied


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

ex-SKSN, USN
Docket No. ND03-00539

Applicant’s Request
The application for discharge review was received on 20030212. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114. 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 stated

 Applicant’s issues, as stated on the application:

 “1) I feel my discharge was inequitable because it was based on one isolated instance in 45 months of service in the United States Navy.

2) I served in the Navy for 3 years and 9 months before being discharged under other than honorable conditions, for testing positive on a urinalysis for THC. Before this unfortunate incident, I was an outstanding sailor, as my evaluations, two letters of commendation, and a Navy Achievement Medal will prove Those documents are included in this folder, for your perusal.

3) When the incident occurred, I was out for a 6 month tour of duty. I had been having marital problems for some time; my wife of 2 years was living with another man, and had my 2 year old son living with them. Being out at sea added to the stress, causing me to make the biggest mistake of my life. This is by no means an excuse for my behavior, but rather an explanation. I deeply regret my actions, and I sincerely hope the Board will upgrade my discharge to honorable, so that I can stand proud about my Navy career.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, undated
Letter from Applicant’s father, dated August 15, 2001
Thirteen pages from Applicant’s service record
Applicant’ s DD Form 214
Certificate of completion, dated September 12, 1999
Certificate of completion, dated September 19, 1999
Training completion form, dated September 1999
Certificate of Mixology Bartending, dated January 19, 2001
Certificate of completion, dated June 20, 2002
License to carry a concealed weapon, expires on February 22, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950616 - 950912  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950913               Date of Discharge: 990712

 Length of Service (years, months, days):

         Active: 03 10 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 55

 Highest Rate: SK3

 Final Enlisted Performance Evaluation Averages (number of marks):*

 Performance: 3.50 (4)    Behavior: 3.00 (4)                OTA: 3.58

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NER, AFSM, NATO, JMU, HSM, Letter of Commendation, SSDR, MUC, GCM

 Days of Unauthorized Absence: None

*Extracted from supporting documents provided by the Applicant.

 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 :

960111:  NJP. No further information in service record. [Extracted from Enlisted Performance Record.] No indication of appeal in the record.
960112:  Applicant found fit for confinement.

990601:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession of controlled substance.
         Award: Forfeiture of $612 per month for 2 months, restriction and extra duty for 45 days, reduction to SKSN. No indication of appeal in the record.
990712:  DD Form 214 Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: NAVMILPERSMAN, Article 1910-146.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990712 under other than honorable conditions for misconduct due to drug abuse (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).

Issues 1-3: The Applicant states his discharge was based on one isolated incident in “45 months.” The civilian world may treat an offense with leniency because it is a first time incident on an otherwise clear record. However, to maintain proper order and discipline, the military does not view such offenses as minor infractions. T o 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 family 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. Relief 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Board determined that the documentation provided by the Applicant did not mitigate his misconduct while on active duty. Relief denied.

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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