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NAVY | DRB | 2003_Navy | ND03-00764
Original file (ND03-00764.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND03-00764

Applicant’s Request
The application for discharge review was received on 20030326. 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 20040224. 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. I can only start off by stating that I take full responsibility for what I have done. However, I would greatly appreciate any consideration from you to upgrade my discharge to honorable. I was discharge for the use of marijuana. I am not a user of this drug nor have I ever been. Foolishly while in Hawaii shortly after my twenty first birthday I unfortunately had a little to much to drink and made the biggest mistake of my life by not saying “no” when I certainly should have. As hard as it may be to believe up until going to Hawaii I was a non-drinker. I did drink this time to celebrate my twenty first birthday. Over the past five years or so I have been working for a security company and even working closely to narcotics here. When I was working with narcotics I started to long for employment with the police dept. Over the years I have made friends with lots of officers down here. All I want is to be apart of the team so that I can be a bigger part of keeping my city a little safer. I know that I will be an asset to whichever department I would choose if I have the opportunity. I’ve been paying for that mistake I made almost nine years ago everyday since. Please consider this application seriously for me I desperately need this to start the career I’ve always wanted but could not have. I hope to hear from you soon. Thanks you very much for taking the time and consideration to review this application.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Criminal Record Check Letter (2 pages)
Copy of Special Police Officer Identification Card
Employment Reference Letter dated February 20, 2003
Employment Reference Letter dated September 12, 2002
National Personnel Record Center Cover Letter dated November 15, 2002
Copies from Service Record (18 pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900605 - 910205  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 910206               Date of Discharge: 941118

 Length of Service (years, months, days):

         Active: 03 09 13
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.44 (5)    Behavior: 3.44 (5)                OTA: 3.75

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR

 Days of Unauthorized Absence: None

 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 :

940808:  Drug and Alcohol Abuse Report: Marijuana abuse as a result of a random urinalysis, recommended for separation.

940812:  NJP for violation of UCMJ, Article 86: UA 4 hours and 18 minutes from CVN-70.
         Award: Forfeiture of $125.00 pay per month for 2 months, restriction and extra duty for 12 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

940822:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 940816, tested positive for [THC].
940823:  Reduction in rate suspension from CO’s NJP 940812 vacated this date.

 940829:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
940829:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO’s NJP held on 940829 for violation of UCMJ Article 112a.
940907:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
941012:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

941027:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

941108:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941118 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).
Issue 1: The Board has no authority to upgrade a discharge for the sole purpose of enhancing career opportunities as requested in the issue. 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 the Applicant’s discharge proper and equitable. 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 submitted by the Applicant does 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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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