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NAVY | DRB | 2003_Navy | ND03-01494
Original file (ND03-01494.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND03-01494

Applicant’s Request
The application for discharge review was received on 20030917. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance discharge review before a traveling panel closest to San Diego, CA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041103. 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.
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation, should read: "MISCONDUCT" vice "MISCONDUCT – DRUG ABUSE - (USE)." The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Dear DRB:

The following issues are the reasons I believe my discharge should be upgraded

My conduct and efficiency ratings/behavior and proficiency marks were good.

My record of promotion of LPO showed I was generally a good service member

I received awards, decorations and letters of recommendation including other acts of merit.

If you disagree, please explain in detail why you disagree. I ask that you review my records for an upgrade.

Thank you”

 Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910517 - 910602  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910603               Date of Discharge: 930730

 Length of Service (years, months, days):

         Active: 02 01 28
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 13                        AFQT: 32

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.93 (3)    Behavior: 3.93 (3)                OTA: 3.86

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, 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 :

910603:  Applicant briefed on Navy's policy of drug and alcohol abuse.
930629:  Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty. Service directed urinalysis 930622. Commanding Officer recommended separation. Comments: MS3/SS W_ L_ B_ (Applicant) is not eligible for future naval service.

930701:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 930622, to wit: cocaine.
         Award: Restriction for 60 days, reduction to E-3. No indication of appeal in the record.
930706:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urinalysis results.

930706:  Applicant advised of 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.

930712:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930721:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930730:  Applicant declined 30 day treatment for alcohol/drug dependency prior to separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930730 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: A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.
There is credible evidence in the record that the Applicant used illegal drugs. The Applicant’s service was marred by award of nonjudicial punishment (NJP) for violation of Article 112a of the UCMJ. 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 Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an under honorable (general) characterization of service. Relief denied.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
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 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 . 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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