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NAVY | DRB | 2004_Navy | ND04-00934
Original file (ND04-00934.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND04-00934

Applicant’s Request
The application for discharge review was received on 20040518. 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 20041103. 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. “My discharge was inequitable because it was based on one isolated incident in 46 months of service with no other adverse action.

Issue 2 and Issue 3. I will first apologize for my absence, my job does not give me the availability to appear before the board. In issue one, I contest that my other than honorable discharge may be inequitable. I understand if you side with the discharging authority instead of me, but it is my hope that in a review of my service record you might conclude that for a time, I was a contributing sailor. I excelled in my rate, received modest decorations, volunteered for maximum collateral duties, and diligently pursued my degree in my spare time. I do understand that one adverse action can undermind many attempts of good service. Nevertheless, I appeal to your grace. In June of 2002, I made the conscious decision to use marijuana. How I wish I could go back in time! Perhaps I thought I would get away with it, or maybe it suggested I lost the military bearing that allowed me to achieve everything beforehand. Despite any excuse, I knew the rules and violated the UCMJ. You must trust that the incident was inconsistent with my values and dedication to my country. I hope the evidence before and since (I have had no civilian offenses) supports my humble request. I understand our country has fought a whole years in my absence. I ask for the chance to do my part in the next one. I have attached a memorandum notifying my father, 48, of his call to duty in Kosovo this October. Nothing could be more shameful to me. I ask that you upgrade my discharge or re-entry code, whichever is necessary for my return to active duty. I realize it is a priveladge to serve, even die, representing America. I hope my actions have not entirely forfeited this right. I must at least make every effort in my power to redeem my name. It is my hope that believe I will again be an asset to your Navy and grant me this request.

Very Respectfully,

K_ L_ G_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Memorandum
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980930 - 981026  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 981027               Date of Discharge: 020911

 Length of Service (years, months, days):

         Active: 03 10 16
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4 (24 months extension)

 Education Level: 11                        AFQT: 91

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.20 (5)    Behavior: 4.00 (5)                OTA: 4.05

 Military Decorations: None

 Unit/Campaign/Service Awards: 9mm PEM, FloC, GCM, NDSM, N&MCAM

 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 :

020619:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020613, tested positive for THC.
020621:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 020612, violation of UCMJ, Article 92: Failure to obey a lawful order on 020610, violation of UCMJ, Article 107: False official statement on 020610, violation of UCMJ, Article 112A: Wrongful use, possession of a controlled substance on 020611.
         Award: Forfeiture of $759 per month for 2 months, restriction for 60 days, reduction to ETSN. No indication of appeal in the record.
020626:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.
020627:  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 and to submit a statement.
020731:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

020816:  COMPHIBGRU THREE directed 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 20020911 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).

Issues 1-3: The Applicant states his discharge was based on one isolated incident in “46 months.” 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 award of non-judicial punishment (NJP) for violation of the UCMJ, Articles 86, 92, 107 and 112a, thus substantiating the misconduct for which he was separated. Drug abuse warranted processing for separation, normally under other than honorable conditions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. 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 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 continuing educational pursuits, 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 his misconduct while on active duty.

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.

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 33, effective 16 Jul 2001 until 21 Aug 2002, 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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