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NAVY | DRB | 2004_Navy | ND04-00147
Original file (ND04-00147.rtf) Auto-classification: Denied


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

ex-AGAA, USN
Docket No. ND04-00147

Applicant’s Request
The application for discharge review was received on 20031028. 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 listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910. 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. “Request consideration for honorable discharge upgrade from under Other Than Honorable Discharge.”
2. “For the convenience of the government.”
Additional issues submitted by Applicant’s counsel Disabled American Veterans:
3. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Conditions discharge to that of Honorable, with the narrative reason changed from misconduct to convenience of the government.

The FSM served on active service from October 27, 1998 to October 11, 2000 at which time she was discharged due to Misconduct.

The FSM requests equitable relief in the form of a discharge upgrade to allow her to fulfill life goals, which she believes will be inhibited by the stigma of this lesser discharge. She accepts full responsibility for the actions taken in service and realizes to late the error of her ways, but is trying her best to be a productive member of society.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member 4) (7 copies)
Copy of DD Form 214 (Member 1) (2 copies)
Letter from K_ L _ G_ , National Service Office dtd August 6, 2004 (2 pages)
Criminal history from Shawnee Police Department, dtd June 29, 2001 (3 copies)
Letter from Applicant, dtd June 24, 2001 (3 copies)
Character Reference from S_ F_, dtd March 29, 2001 (3 copies)
Character Reference from Tecumseh High School, Spanish Instructor, T_ D_H_, dtd          7 April 2001 (3 copies)
Character Reference from S_ W_, dtd April 11, 2001 (3 copies)
Character Reference from Tecumseh High School, Science Teacher, C_ S_, dtd       November 13, 2000 (3 copies)
Character Reference from E_ M_, dtd April 9, 2001 (3 copies)
Character Reference from D_ N_F_, dtd June 28, 2001 (3 copies)
Letter to NCPB from Applicant, dtd May 16, 2004 (2 copies)
Applicants letter request a review of her file, dtd April 30, 2003 (3 copies)
Letter from B_ J_ D_, dtd May 16, 2004 (2 copies)
Letter from E_ J_ I_ J_, House of Representative, dtd May 13, 2003 (3 copies)
Letter to E_ J_ I_ J_, from Representative K_ S_, dtd May 1, 2003 (3 copies)
Letter from R_ C_, National Service Officer, dtd July 12, 2001 (2 copies)
Court Memorandum (NJP) dtd 00 Aug 11 (2 copies)
Medical record (11 pages) (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980318 - 981026  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 981027               Date of Discharge: 001011

 Length of Service (years, months, days):

         Active: 01 11 15
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 64

 Highest Rate: AGAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.67

 Military Decorations: None

 Unit/Campaign/Service Awards: N&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 :

980318:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 000811:  NJP for violation of UCMJ, Article 112(A): Wrongful use of a controlled substance on or about 000721, wrongful use 3, 4 Methylenedioxymethamphetamine (commonly known as “ecstasy”), A scheduled 1 controlled substance.
         Award: Reduction to E-2. No indication of appeal in the record.
000918:  Commander, U. S. Naval Forces, Japan authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

 Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001011 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper an equitable (B and C). The presumption of regularity of government affairs was applied by this Board in this case in the absence of a complete discharge package (D).

Issue 1. The Board found 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. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

Issue 2. The summary of service clearly documents that misconduct was the reason the applicant was discharged. No other Narrative Reason for Separation more clearly describes why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief based on this issue is not warranted.

Issue 3. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

The applicant’s representative requested that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVINST 5420.174C. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided six letters of character references as documentation of her pre-service conduct. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and evidence of drug free existence, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in her characterization of discharge. 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 additional documentation to support any claims of post-service accomplishments 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C. 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.
D. 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.


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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