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NAVY | DRB | 2004_Navy | ND04-00106
Original file (ND04-00106.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND04-00106

Applicant’s Request
The application for discharge review was received on 20031023. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant listed a Congressman as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that members of congress do not represent applicants before the Board and that written authorization must be obtained from the Congressman. Such authorization was not received; therefore case reviewed without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “At my Administrative Separation Board the decision by the board members was to retain me in the Navy. Two weeks after this decision was made, the Commanding Officer had made a decision to continue with the admin separation process. My question is why did he have me go through this whole process, if he was going to seperate me?”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Congressman R_ H_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990810 - 990824  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990825               Date of Discharge: 030328

 Length of Service (years, months, days):

         Active: 03 07 04
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 40

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 2.33 (3)                OTA: 2.95

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MCOSR

 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 :

020919:  NJP for violation of U CMI, Article 112a: Wrongful use of a controlled substance.
Award:   Forfeiture of $620.O0 per month for 2 months, restriction and extra duty for 45 days, reduction to HA. No indication of appeal in the record.

020924:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of illegal drug use.
020924:  Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
021018:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed misconduct due to illegal drug use.
021023:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of secretarial authority.
021023:  Applicant advised of her rights and having consulted 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.
021023:  Commanding Officer recommended discharge general (under honorable conditions) by reason of secretarial authority due to her illegal drug use and high potential of using drugs again.
021119:  CNMPC recommended discharge general (under honorable conditions) by reason of secretarial authority because an administrative separation board did not recognize the overwhelming evidence of record. An administrative separation board found that the Applicant did not commit misconduct despite her admission of using ecstasy.
030221:  ASN(M&RA) approved CNMPC recommendation.

 030304:  CNMPC directed the Applicant ’ s discharge general (under honorable conditions) by reason of secretarial authority.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030328 under honorable conditions (general) by secretarial authority (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 I. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member ’ s conduct or performance of duty outweigh the positive aspects of the member ’ s military record. The Applicant ’ s service was marred by award of nonjudicial punishment (NJP) on one occasion for illegal drug use. 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 honorable characterization of service. An upgrade to honorable is inappropriate. Even in cases where an administrative board finds no misconduct, the Chief of Naval Personnel may request Secretarial review if it appears the “no misconduct” determination by the board was clearly contrary to the substantial weight of the evidence in the record. Applicant’s case was forwarded for such review based on her admission of drug usage. The decision to separate was properly and equitably made by the Assistant Secretary of the Navy (Manpower and Reserve Affairs). Relief denied.

The Applicant ’ s discharge characterization accurately reflects her service to her country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred during the Applicant ’ s enlistment. Additionally, 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. Relief denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge. 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 18, effective 12 Dec 97 until 21 Aug 2002, Article 1910-164 (formerly 3630900), Separation by Reason of Best Interest of the Service (BIOTS).

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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