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NAVY | DRB | 2004_Navy | ND04-00204
Original file (ND04-00204.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND04-00204

Applicant’s Request
The application for discharge review was received on 20031117. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040720. 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:

 “I feel that my discharge was improper due to the fact I fell under the zero tolerance policy. Also I had no time to appeal due to family problems during my time of service. I had requested for an early out. Unfortunatelly due to random urinalysis it was not possible.

During my time in the service, I had performed with great dedication and loyolity. And let my service record speak for it self. It is disappointing to think I learned alot while serving my country, to come home a vetern of the Gulf War, with an other than onorable hanging over my head. It is quit imbarresing to apply for a job, and to tell any future employer that I served in the armed forces, but was not discharged honorable. I will gladly get on my knees and beg in Washington to have my discharged changed, if it would help.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891026 - 900618  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900619               Date of Discharge: 930927

 Length of Service (years, months, days):

         Active: 03 03 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 27

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)    Behavior: 3.60 (4)                OTA: 3.75

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(wb*), JMUA, NUC, KLM, SASM(w2b*)

 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 :

890828:  Applicant briefed on Navy’s policy of drug and alcohol abuse.


900620:  You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement: Faulty Tail Light, Speeding, Belen, NM, May 90, Paid $46.00 fine.

911121:  NJP for violation of UCMJ, Article 134: Larceny of $69.00 worth long distance phone services from USS TARWA (LHA-1).
         Award: Forfeiture of $140.00 pay per month for 1 month. No indication of appeal in the record.

911127:  Retention Warning: Advised of deficiency (Minor disciplinary infraction, a beginning pattern of misconduct and involvement of a discreditable nature with the military authorities as evidenced by your appearance at NJP on 911121 for violation of UCMJ, Article 134 (Larceny of service), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930827:  DAAR indicates cocaine abuse as a result of a random urinalysis, found not dependent by medical officer, recommended for separation not via VA hospital.
930827:  NJP for violation of UCMJ, Article 112a: Use of methamphetamine on 930813.
Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
930901:  Medical evaluation indicates Applicant popped positive on urine test for crystal methamphetamine, Applicant denies ever using this drug at all, found dependent on methamphetamine

930907:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse [Extracted from CO’s message].
930907:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights [Extracted from CO’s message].

930913:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930917:  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 19930927 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 available 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. 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.

An Under Other Than Honorable Conditions discharge 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 two occasions for violations of articles 112a and 134 of the UCMJ. In addition the Applicant’s command Drug and Alcohol Report/Medical Evaluation confirmed illegal drug use, on two occasions, thus substantiating the misconduct for which he was separated. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief on this basis is 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 . 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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