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NAVY | DRB | 2004_Navy | ND04-00206
Original file (ND04-00206.rtf) Auto-classification: Denied


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



ex-AD3, USN
Docket No. ND04-00206

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 discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. After a thorough review of the available 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. “I was a good solider. My service record will reflect that. Please review and reconsider.
Thank you,
 Proud to serve
 B_ L_ B_ (Applicant)”

 Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 2. “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 of 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 (OTH) discharge to Honorable.
The FSM served on active service from January 25, 1995 to September 7, 2000 at which time he was discharged due to misconduct. During his period of service the FSM received several medals and citations to include a Good Conduct Medal.

The FSM contends the current discharge is improper and should be reconsidered because he was a good soldier as reflected by his service record. Evaluations show an above average service member that was an asset to the Unit. The FSM was even frocked to the next higher rank due to his meritorious / outstanding service. There is only on incident of UCMJ action on September 14, 1995 for a drunk and disorderly offense on August 2, 1995 for which he received counseling and a punishment of forfeiture of pay (suspended for 6 month) 20 days extra duty / restriction. The remainder of the five years of active service according to the available records reflect outstanding honorable service, which renders the current OTH discharge improper.
If there other records available to justify the current OTH discharge then this representative request they be made available for review. If not, then it is our opinion the current discharge is improper and not in accordance with the law.
 An impropriety will be held to exist when there is an error of fact, law, procedures, or discretion associated with the discharge at the time of issuance; and that the rights of the Applicant were prejudiced thereby (such error shall [and does] constitute prejudicial error), as we believe there is doubt that the discharge would have remained the same if the error had not been made, to include any changes in Army policy made expressly retroactive to this type of discharge under consideration. See, 32 CFR 724.902.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is also 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.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
          Active: USNR              940930 - 990726  HON
Period of Service Under Review :
Date of Enlistment: 990727               Date of Discharge: 000907

 Length of Service (years, months, days):

         Active: 01 01 11
         Inactive: None

 Age at Entry: 27                          Years Contracted: 3
Education Level: 10 GED           AFQT: 49
Highest Rate: AD2

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, GCM, SSDR, NATO, AFEM, PR, RR

 Days of Unauthorized Absence: None
*No marks found in service record.
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 :

990727:  Applicant reenlisted for 3 years.
000907:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority: NAVMILPERSMAN, Article 1910-146.
Discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000907 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, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issues 1-2. 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. 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. 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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