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NAVY | DRB | 2004_Navy | ND04-00640
Original file (ND04-00640.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00640

Applicant’s Request
The application for discharge review was received on 20040309. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because at my court marshal a General in the US Navy said that I could stay in the Navy. But I was administratively discharged by a Lieutenant."

2. “I have been rehabilitated since my remorseful actions happened while serving the U. S. Navy. I plan to go back into the armed services as a 91W in the Army National Guard. I should be activated within the next coupel of months. I want to right the wrongs I have made in the past what happened to me in the Navy was the worst mistake I have made in my life. Re-enlisting will help set my conscious at ease and for me to help defend my country as I had originally planned to do.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member 4)
Associate Art Degree from Des Moines Area Community College, dated December, 1999
Transcript from Des Moines Area Community College, dated August 28, 1998
Letter of Appreciation from T_ C_ L_, Superintendent, United States Naval Academy, dated November 15, 1993
Letter of Appreciation from T_ C_ L_, Superintendent, United Stated Naval Academy, dated August 31, 1993
Navy Alcohol and Drug Safety Action Program Certificate, dated August 27, 1993
Performance Evaluation Report, dated for the period of February 01, 1995 – April 26, 1995 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930127 - 930207  COG
         Active: USN               None

 Period of Service Under Review :
Date of Enlistment: 930208               Date of Discharge: 950426

 Length of Service (years, months, days):

         Active: 01 11 06
         Inactive: 00 00 00

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (2)    Behavior: 3.20 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 103

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :


940518:  Applicant went on Unauthorized Absence from NAVST Annapolis MD on or about 0730 hours, 940518.

940520:  Applicant declared a deserter.

940830:  Surrendered on or about 0900 hours, 940830.

 940830:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 940831, tested positive for THC and Cocaine.
941007:  Applicant pleaded guilty to both charges (UCMJ Article 86 and UCMJ Article 112a) and signed a pretrial agreement by the Convening Authority prior to date of trail.
941012:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence for a period of 103 days.
         Additional Charge: violation of the UCMJ, Article 112a (2 Specifications): Wrongful use of a controlled substance.
         Specification 1: Wrongful use of THC.
         Specification 2: Wrongful use of cocaine.
         Findings: to Charge I and the additional Charge and the specifications thereunder, guilty.
 Sentence: Hard Labor without confinement for 90 days, forfeiture of $500 per month for 3 months, restriction for 60 days. Reduction to E-1.
 CA 941216: Sentence approved and ordered executed.

 941205:  Applicant requested clemency.
941221:  Applicant notified of intended recommendation for discharge and the least favorable characterization of your service may be other under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse as evidenced by your special court-martial on October 12, 1994.

950110:  BUPERS advised command to initiate administrative separation processing for misconduct due to drug abuse using administration board procedures.

950118:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950118:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of serious offense and drug abuse as evidenced by her special court-martial of October 12, 1994 and by a vote of 2 to 1 recommended separation, and if separated, by a unanimous vote recommended discharge with a general (under honorable conditions).

950309:  Applicant was offered in-patient treatment at a DVA hospital due to alcohol dependency and the member declined such treatment.

950316:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to commission of a serious offense and drug abuse as evidenced by her special court-martial of October 12. 1994.

950405:  BUPERS directed the Applicant's discharge general (under honorable conditions) by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950426 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and 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 Applicant’s service was marred by award of special court-martial for violating UCMJ, Articles 86 and 112a. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. 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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. E vidence of a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate her misconduct while on active duty.

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 her discharge at that time. Representation at a personal appearance hearing is recommended but not required.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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