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NAVY | DRB | 2004_Navy | ND04-00212
Original file (ND04-00212.rtf) Auto-classification: Denied


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


ex-RMSN, USN
Docket No. ND04-00212

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 general/under honorable conditions. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. “My discharge was improper and unfair Based on one isolated incident in 60 mos of service with no other adverse action.

2. My Service Record will indicate that I was an outstanding Sailor in Atlantic (SSBN) Fleet.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated December 1, 2003
Character reference, undated
 Character reference, dated December 2, 2003
 Character reference, dated November 24, 2003
Criminal history record, dated December 11, 2003
 Performance Appraisal, dated October 7, 2003 (5 pages)
 Certificate of Achievement, dated June 23, 1997
Honor Certificate, dated June 18, 1997
 Working Hours and Evaluation sheet, dated May 17 to May 30
 Working Hours and Evaluation sheet, dated May 15, 1997
 Working Hours and Evaluation sheet, dated April 29, 1997
 Student transcript, dated July 7, 1997 (3 pages)
Training and Experience record (DD Form 1435)
 Certificate of training, dated May 24, 1991
 Certificate of completion, dated May 18, 1992
 Certificate of completion, dated November 4, 1991
 Certificate of completion, dated October 4, 1991
Certificate of completion, dated February 24, 1992
 Certificate of completion, dated February 14, 1992
 Certificate of completion, dated January 9, 1992
Certificate of completion, dated November 26, 1991
 Certification of Military Service, dated May 3, 1996
 Enlisted Performance Evaluation Report, dated October 24, 1989
Enlisted Performance Evaluation Report, date(s) unreadable
 Enlisted Performance Evaluation Report, dated February 13, 1991
Enlisted Performance Evaluation Report, date(s) unreadable

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        880425 - 900219  HON
          Inactive: USNR (DEP)     880315 - 880424  COG

 Period of Service Under Review :
Date of Enlistment: 900220               Date of Discharge: 930514

 Length of Service (years, months, days):
         Active: 03 02 25
          Inactive: None
Age at Entry: 23                          Years Contracted: 6

 Education Level: 12                        AFQT: 61
Highest Rate: RM2

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.70 (4)    Behavior: 3.60 (4)                OTA: 3.70

 Military Decorations: None
Unit/Campaign/Service Awards: GCM, MUC, BER, DPP, NDSM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

930227:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance, to wit: marijuana.
         Award: Forfeiture of $616.60 per month for 2 months, reduction to RM3. No indication of appeal in the record.
930331:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly. Random urinalysis 930301. CAAC recommended separation. Commanding Officer recommended separation. Comments: Member is a 26 year old male with 5 years active duty who tested positive for THC on a random urinalysis. Member meets criteria for administrative discharge.
930409:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

 930423:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
930423:  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.
930428:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
930505:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930514 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 Applicant states his discharge was based on one isolated incident in “60 months.” The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, to maintain proper order and discipline, the military does not view such offenses as minor infractions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Relief denied.

Issue 2. The Applicant requests the Board consider the fact that he was an outstanding sailor. 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 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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