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NAVY | DRB | 2004_Navy | ND04-00655
Original file (ND04-00655.rtf) Auto-classification: Denied


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

ex-SKSR, USN
Docket No. ND04-00655

Applicant’s Request
The application for discharge review was received on 20040312. The Applicant requests the characterization of service received at the time of discharge be changed to “highest obtainable.” 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 20041008. 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “To whom it may concern,

I wish to file for and upgrade in my military discharge because I feel it is inequitable. It is based on one incident in my third year of an otherwise flawless four-year enlistment. I was on track in my training and my rank and had above average if not remarkable evaluations during my enlistment. My commanding officer even mentioned my superior work performance while attached to my squadron in his review of my case I received a Letter of commendation and a Plane captain of the month award for my hard work and professionalism while attached to my squadron. I was promoted to E-4 and was eligible for the next on coming E-5 exam. I also had a Meritorious unit Commendation, two sea service ribbons and two over seas service ribbons.

I know I fell short of my oath of enlistment by about six months and I also know of the military’s policies on drug usage. I made one mistake on one New Years night and wish it not to follow me for the rest of my life. I experienced with drugs at the wrong time and at my own and the Navy’s expense. I do not have a problem with drugs and am not addicted to them. I do not even hang around with people that do them anymore. I am moving on with my life.

Since my discharge I’ve have been attending a community college and knocked out two semesters in route of a hope full bachelor’s degree in Business. I know my discharge is going to catch up with me then and shoot down my dreams of being successful in my eyes. It already has in one way. I have just recently graduated from a truck driving school and obtained my class “A” commercial driving license and wished to get a job in the trucking industry but none of these companies will hire me with my record.

I honestly don’t feel I deserve an Honorable discharge but I strongly feel I don’t deserve a label like my Other than Honorable is given me either. If I am ever to be productive successfully in society and to give my child everything I feel he deserves by me being a role model and having a career which will keep me out of poverty I have to have this off my record. Please help.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Copy of Letter of Commendation
Copy of Letter of Congratulation to Applicant’s mother (Outstanding Plane Captain of the month) dated November 13, 2001
Copy of Third Class Petty Officer Authorization Letter dated June 10, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     991228 - 000105  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 000106               Date of Discharge: 0030327

 Length of Service (years, months, days):

         Active: 03 01 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11                        AFQT: 53

 Highest Rate: SK3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)    Behavior: 2.25 (4)                OTA: 2.70

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM, SSDR(2), OSR(2), LOC

 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 :

030122:  NAVDRUGLAB SAN DIEGO, CA, reported Applicant’s urine sample, received 030113, tested positive for amphetamine/methamphetamine.
030202:  Summary Court-Martial:
         Charge I: violation of the UCMJ, Article 112a:Wrongful use of a controlled substance.
         Finding: Member was found guilty by legal and competent evidence beyond a reasonable doubt.
         Sentence: Confinement for 30 days, forfeiture of $1000.00, reduced to
E-1.
          CA action 030202: Sentence approved and ordered executed.

030207:  Medical evaluation indicates applicant does not appear to meet DSM-IV criteria for alcohol and drug dependence
030223:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030223:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.
030223:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030313:  Commander, Carrier Group FIVE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030327 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 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity is evident during the Applicant’s enlistment. The Applicant states his discharge was based on one isolated incident in three years of otherwise honorable service. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by conviction at summary court-martial for illegal drug use, thus substantiating the misconduct for which he was separated. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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 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 has expressed some difficulty in obtaining employment as a result of his discharge. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 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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