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NAVY | DRB | 2003_Navy | ND03-01334
Original file (ND03-01334.rtf) Auto-classification: Denied


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

ex-MR3, USN
Docket No. ND03-01334

Applicant’s Request
The application for discharge review was received on 20030808. 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 20040526. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I was awarded half separation pay from my command under SECNAV Instruction 1900.7G paragraph 8. Attached However my character of service General (under Honorable Cond) does not match my Sep. code of GKQ I would like to request that my code be changed.

As it is now I cant have any Honorable Conditions.

When I received my Sep. Pay I was given the SEC.NAV.Inst 1900.7 which my command followed to pay me.”

 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 Service 2)
Letter from Applicant, dated April 17, 2003
Letter from Defense Finance and Accounting Service, dated October 28, 2002
Seven pages from Applicant’s service record
Letter from Defense Finance and Accounting Service, dated December 27, 2001
Account statement, dated November 19, 2001
SECNAV Instruction 1900.7G, dated July 30, 1991 (6 pages
DoD Financial Management Regulation, dated February 2001 (8 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     851129 - 860406  COG
         Active: USN                       860407 - 900405  HON
                  USN                       900406 - 961204  HON

 Period of Service Under Review :
Date of Enlistment: 961205               Date of Discharge: 980327

 Length of Service (years, months, days):

         Active: 01 03 23
         Inactive: None

 Age at Entry: 30                          Years Contracted: 2

 Education Level: 11                        AFQT: 76

 Highest Rate: MR2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.67 (3)    Behavior: 2.67 (3)                OTA: 3.70

 Military Decorations: None
Unit/Campaign/Service Awards: ESWS, NEM, CGMUC, SSDR (2), CGSOSR, BER (3), MUC (2), Letter of Commendation (2), GCM (3)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

961205:  Applicant reenlisted for 2 years.

 971022:  Counseling: Advised of deficiency (Failure to comply with an order. Disrespect towards a senior officer.).

971230:  Counseling: Advised of deficiency (Unauthorized absence).

971230:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 971219, tested positive for tetrahydrocannabinol.

980105:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 971217.
         Award: Forfeiture of $388.50 per month for 2 months, restriction and extra duty for 45 days, reduction to MR3. Restriction and extra duty suspended. No indication of appeal in the record.
980115:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
980115:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
980225:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

980323:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): In accordance with Ref (b) [BUPERS Publications/Directives CD-ROM dated January 1998: MILPERSMAN 1910-146] and (c) [BUPERS Publications/Directive CD ROM dated October 1997: MILPERSMAN 3630620] and 3610250 paragraph 2.b(2[1]) the command recommends Other Than Honorable Discharge (OTH) because the single incident is prejudicial to good order and discipline. The service member’s conduct constituted significant departure from the conduct expected of members of the Naval Service. The board recommended a General Discharge because Ref (c) Article 3630620 was misinterpreted. The phrases listed under Article 3630620 (paragraphs 3.a and 3.e), “Normally will be Under Other Than Honorable conditions if the Administrative Board procedures were used [Administrative Board Procedure utilized]; however, If separation processing is based solely on urinalysis test (fitness for duty, and certain directed tests) results, or on drug abuse divulged through the Voluntary Self-Referral Program under OPNAVINST 5350.4B[Ref*(d) above] [OPNAVINST 5350.4B Alcohol and Drug Abuse Prevention and Control Instruction], the characterization or description shall be Honorable, unless….” Mislead the board to understand that a General discharge was the least favorable characterization the could be awarded. The board did not consult Ref (b), which is a more recent revision of Ref (c), or Ref (d) for further guidance which states that Other Than Honorable (OTH) was the least favorable characterization that could be awarded. The disciplinary was not rectified prior to the end of the board.

980326:  Commander, Western Hemisphere Group directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980327 with a general (under honorable conditions) for misconduct due to commission of a serious offense (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 and is classified as a commission of a serious offense. The separation code of GKQ (misconduct due to commission of a serious offense) accurately reflects the reason the Applicant was discharged from the naval service. 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 or any other evidence relating 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .
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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