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NAVY | DRB | 2004_Navy | ND04-00525
Original file (ND04-00525.rtf) Auto-classification: Denied


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


ex-EMFA, USN
Docket No. ND04-00525

Applicant’s Request
The application for discharge review was received on 20040212. 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 review was conducted in Washington, D.C. on 20041015. 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 4 to 1 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 am submitting this letter in regards to my discharge from the United States Navy in November 1998. I am hoping to be able to upgrade my discharge in order to clear my name with the government. And also in hopes that I can serve my country again if I am needed. After reading the application for a discharge upgrade, I feel that I am being asked to prove my innocence. If it was up to me, I would rather show you the good things that I did in the Navy and the things that I have done since being discharged. With saying that here is my issue. I feel that I was not given the chance to prove my innocence after being convicted of drug use in the Navy. Upon being interrogated by NIS, I was asked if I used drugs or knew anyone who did. I told them I did not. I felt they did not believe me. My locker and person were immediately searched, and nothing was found. I immediately took a drug test, which came up negative. During interrogation, two other sailors apparently told NIS that they had seen me use drugs. They later confessed that they lied during interrogation. I told the command that they had lied, and even had them sign a letter stating that they had lied, witnessed by the master at arms. That had no effect what so ever. The command seemed bent on convicting me. During captain’s mass, I requested that my accusers speak. I was denied this request. I was dropped in rank, given and other than honorable discharge, and my vacation time and GI bill were taken away. I was also locked aboard the ship for 95 days with extra duty. No visitors, no phone privileges, and no understanding of what was going on. I tried to appeal the decision, but was denied. I was discharged two weeks before my estimated date of separation. I know that during my enlistment my conduct off duty was not exactly perfect. I was late to the boat once, received a DUI while serving, one time on watch I was very fatigued and fell asleep, but I did my job and I was proud to be in the Navy. During my enlistment, I must have taken 20 different random drug tests, which all came up negative. I can honestly tell you that I did not use drugs while in the Navy and do not use drugs now. I feel that there is nothing else I can say that can prove my point. Please read my letters of commendation, school records, evals, and decide for yourself what kind of a sailor you think I was.
I have enclosed several letters of reference to include past and present commendations from people who knew me well and who can vouch for my character. My goal here is to show you that I am a decent man who has grown and has learned to accept what has happened. Over the past four years I have worked very hard. I have cleared my name with the police for a past DUI that I received while I was in the Navy. I have paid all fines due, kept a valid drivers license for the last four years, with not so much as a speeding ticket on my record, held a steady job, contributed to society, and support a household. I received a certificate of completion for taking college business courses, and aspire to own the business that I am currently running. I have attended a Martial Arts school for the past year and plan to continue learning until reaching my black belt.
With all of my achievements, I have given great thought to the issue of my discharge, and I feel that it is an obstacle in my life that is holding me back. I know that your time is precious, and that you have much to deal with, so I won’t draw this out too much longer.
Enclosed I am sending the following: letters received during my time in the Navy to include letters of reference from coworkers and officers of a job well done, military school grades received, advancement scores and my evals.
On the civilian end I am sending letters from my employer, landlady, senior citizen center, college course certificate, martial arts certificate, police report, and even a random drug test while on the job.
In closing, I would like to thank you for the time you have taken to read this letter. I feel that my references will show that not only am I a good man today, but that I was also a good sailor then.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Flag Letter of Commendation
 Commanding Officer Letter of Commendation (3)
 Service Record Documents (2 pages)
 Advancement Exam Results (2 pages)
 Evaluation Report 23 JUL 95 to 15 JAN 96
 Evaluation Report 15 JAN 96 to 15 JUL 96
Evaluation Report 16 JUL 96 to 15 JAN 97
 Evaluation Report 16 JAN 97 to 15 JUL 97
 Evaluation Report 16 JUL 97 to 07 DEC 97
 Character Reference from EM2 J_ S_
 Character Reference from EM3 P_ Y_
Letter from QM2 B_
 Letter from FCSN K_
 Character Reference from M_ W_
Character Reference from W_ A. B_, Jr.
 Character Reference from B_ A_
 Character Reference from T_ R. W_ (2 pages)
 Criminal Records Check (3 pages)
 Letter from J_ B_
Certificate of Completion
Certificate of Purple Belt, Taekwondo

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940428 - 941108  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 941109               Date of Discharge: 981105
Length of Service (years, months, days):

          Active: 03 11 27
          Inactive: None

 Age at Entry: 19                          Years Contracted: 4
Education Level: 12                        AFQT: 51

 Highest Rate: EM3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (5)    Behavior: 3.40 (5)                OTA: 3.17
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NER, AFEM, SSDR (2), AFSM
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 :

970128:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days, reduction to E-2 (suspended 6 months). No indication of appeal in the record.
980701:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 15 days. No indication of appeal in the record.
980810:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award: Forfeiture of $591 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
980911:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 60 days, reduction to E-2. No indication of appeal in the record.
981105:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse.
Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981105 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).
Issue 1: 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 or inequity after a review of Applicant’s case. The Applicant contends that he did not use illegal drugs while in the Navy. The record contains evidence that the Applicant was convicted at nonjudicial punishment (NJP) on four separate occasions for violations of UCMJ Articles 86, unauthorized absence, 92, dereliction of duty and failure to obey an order or regulation, and 112a, wrongful use of a controlled substance. The record contains no evidence to suggest these findings of guilt at NJP were either improper or inequitable. As such, the record contained credible evidence that the Applicant had committed misconduct due to drug abuse. 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 burden of overcoming this presumption with substantial and credible evidence rests with the Applicant. While the Board recognizes the Applicant submitted some evidence that tends to show his innocence, the documentation available was insufficient in defeating the presumption of regularity. Relief denied.
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 sufficient 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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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