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NAVY | DRB | 2003_Navy | ND03-00588
Original file (ND03-00588.rtf) Auto-classification: Denied



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

ex-GSEFA, USN
Docket No. ND03-00588

Applicant’s Request
The application for discharge review, received 20030211, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20030909. 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 and the narrative reason for the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.





SPN CODE KFS
SEP9306. This is the correct shell for SEP- IN-LIEU for the period 28 Jun 93 (SPN Code change) until 21 Jul 94. Narrative reason for separation: IN LIEU OF TRIAL BY COURT MARTIAL. In BUPERSINST 1900.8, under narrative reason, there is no dash (-) between “court” and “martial”. A general discharge is written GENERAL (UNDER HONORABLE CONDITIONS).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 Issue 1: Post service conduct.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and State Director of Veterans Affairs –6)
Affidavit, signed by Applicant
Statement from Applicant, undated
Character reference from a deacon at Antioch Missionary Baptist Church, undated
Character reference from Lt, Elbert County Sheriff’s Office, dated February 7, 2003
Character reference from Pastor, Westside Presbyterian Church, dated February 7, 2003
Character reference, dated February 6, 2003
Certificate of completion, dated July 6, 1997
Certificate of recognition and appreciation, dated August 1992
Certificate of training, dated August 9, 1991
Certificate of training, dated September 1991
Enlisted Performance Evaluation Report dated February 1, 1992 to August 31, 1992
Enlisted Performance Evaluation Report dated February 1, 1992 to January 31, 1993

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            890128 - 891011  ELS
                  USNR (DEP)      900907 – 900924  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900925               Date of Discharge: 940609

 Length of Service (years, months, days):

         Active: 03 08 15
         Inactive: None

Age at Entry: 19                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 045

 Highest Rate: GSEFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (3)    Behavior: 3.60 (3)                OTA: 3.73

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM, SASM with Bronze Star, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

900928:  Applicant briefed on Navy's policy of drug and alcohol abuse.
930506:  Outpatient psychiatric evaluation: Diagnosis: Axis I: Life circumstance problem. Axis II: None. Axis III: Low back pain.

931206:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 931130, tested positive for THC.

931227:  NJP for violation of UCMJ, Article 86: Absent from unit on 0630-1300, 931206, violation of UCMJ, Article 87: Missed movement on 0900, 931206, violation of UCMJ, Article 112A: Wrongfully use marijuana on 931118.
         Award: Restriction and extra duty for 45 days, reduction to GSEFA. No indication of appeal in the record.

940121:  Applicant found alcohol dependent and recommended for Level I and Level II alcohol rehabilitation program.

940302:  Drug screening: Applicant found not to be dependent on valium.

940127:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse as evidenced by your NJP of 27 December 1993.
940127:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940325:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and drug abuse, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.

940404:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to drug abuse.

940425:  Commanding Officer requested CNMPC to put initial separation processing on hold, Applicant tested positive for drugs a second time. [Extracted from decisional document of 950612.]
940513:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. [Extracted from decisional document of 950612.]

940520:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge. [Extracted from decisional document of 950612.]

950612:  NDRB documentary record review Docket Number ND95-00731 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940609 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

 Issue 1: T here 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 Board appreciates the Applicant’s efforts to improve his life and his involvement in his local community’s counter narcotic efforts and encourages him to continue his participation. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

 A . Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 112A, wr ongfully use marijuana, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C. 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.

D. 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.

E. 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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