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NAVY | DRB | 2003_Navy | ND03-00863
Original file (ND03-00863.rtf) Auto-classification: Denied


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

ex-HM3, USN
Docket No. ND03-00863

Applicant’s Request
The application for discharge review was received on 20030424. 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 20040401. 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. “Board Members:

My name is J_ S. E_. My SSN is x. I served in the US Navy from 21May96 through 16Aug00 and received an Other Than Honorable Conditions discharge. This letter and accompanying DD Form 293, Dec 2000, as well as accompanying documentation, constitutes a formal request for review of my discharge. Although accompanying DD Form 214 states that the reasons for my discharge under other that honorable conditions were “Misconduct due to drug abuse,” and I do not contest those reasons, my service to the United States while a serving member of the USN and as a citizen since my separation, as documented in accompanying material, demonstrating my drug-free work and legal records and my solid academic performance, justify an upgrade of my discharge received to Honorable. I am now free from drug use and shall continue to remain so. Now I serve my country honorably as a civilian, and I request that the Board recognizer that my behavior reflects honorably on my term of service with the United States Navy.

Sincerely,

J_ S. E_”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Employment Reference Letter
Character Reference Letter from Pastor
Police Record Check
Copies of Evaluation Report & Counseling Record (20 pages)
Copy of Transcript from Williston State College

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950531 - 960520  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 960521               Date of Discharge: 000816

 Length of Service (years, months, days):

         Active: 04 02 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (22 months extension)

 Education Level: 12                        AFQT: 38

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (8)    Behavior: 3.12 (8)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: FMF, Pistol Marksman, Rifle Marksman, SSDR, GCM, MUC

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

970320:  NJP for violation of UCMJ, Article 121: Did on board MCAGCC on or about 970215 wrongfully appropriate a reading book, C.D.’s, and Game boy games, of a value of about $620.00 the property of LCpl K_ T. S_.
         Award: Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
000703:  NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 000624, tested positive for [MDA/MDMA].

000810:  NJP for violation of UCMJ, Article 112a: Wrongfully use methamphetamine on or about 000626.
Award: Forfeiture of $667.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
000810:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000810:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
000811:  Commander, Naval Medical Center, San Diego authorized 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 20000816 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: There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his drug abuse 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 27, effective 27 March 2000 - 11 Feb 2001, 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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