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NAVY | DRB | 2003_Navy | ND03-01031
Original file (ND03-01031.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-01031

Applicant’s Request
The application for discharge review was received on 20030528. The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized. The Applicant requests a documentary record review. 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 documentary discharge review was conducted in Washington, D.C. on 20040415. 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 am requesting that my “other than honorable” Discharge be changed to an “Entry Level Separation”, as per Item 3, Paragraph 2, Page 3 of the attached copy of instructions for this form (DD Form 293). Thank you for your consideration.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

“1. We concur with the Applicant contentions that his discharge be upgraded. We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for changing his discharge to Entry Level Separation or Uncharacterized.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Instruction for Completion of DD Form 293
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920413 - 930215  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 930216               Date of Discharge: 930709

 Length of Service (years, months, days):

         Active: 00 04 24
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 74

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB*                 Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM,

Days of Unauthorized Absence: None
* Not Observed

 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 :

930330:  You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into the naval service as evidenced by your failure to disclose your pre-service civil involvement:
         Equipment violation (loud muffler), 11/91, Dearborn Heights, MI. Paid $75.00 fine.

930520:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine).
         Award: Forfeiture of $350.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
930521:  Medical evaluation found the Applicant not alcohol or drug dependent.

930528:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by drug incidents in your current enlistment.

930601:  DAAR indicates cocaine abuse as a result of a unit sweep, found Applicant not dependent, recommended for separation not via VA hospital.

930601:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930611:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) as evidenced by all drug incidents in current enlistment.

930701:  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 19930709 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: By regulation, members discharged within the first 180 days of enlistment are given characterization of services as “Uncharacterized” unless there were unusual circumstances regarding performance of conduct which would merit an “other than honorable” characterization. Such circumstances exist in Applicant’s case since there is credible evidence in the record that the he 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 . 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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