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NAVY | DRB | 2004_Navy | ND04-00983
Original file (ND04-00983.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND04-00983

Applicant’s Request
The application for discharge review was received on 20040603. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region . The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050310. 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 3630620.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Issues submitted by Applicant’s representative (Veterans of Foreign Wars):

“1. Consider the equity of discharge upgrade from under other than honorable conditions.

2. Married 3 years July.

3. Instrumental in starting cell phone for soldiers @ his job location.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (3)
Employment reference letter dated March 8, 2005
Police record check dated March 8, 2005
Web page extract dated March 8, 2005
Flyer dated January 26, 2005
Email from Applicant dated January 5, 2005
Notification of Star Awards dated December 7, 2001, December 11, 2001, January 16, 2002, June 9, 2003, September 27, 2003, December 4, 2003, February 13, 2004, December 31, 2004, January 28, 2005, February 23, 2005
ARC donation receipt
Customer letter of thanks dated November 28, 2001
Statement from Applicant
Letter from Member of Congress to Naval Council of Personnel Boards, dated May 11, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940726 - 940921  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940922               Date of Discharge: 971013

 Length of Service (years, months, days):

         Active: 03 00 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 62

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)*            Behavior: 3.00 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*Extracted from Commanding Officer’s message dated 970909

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

970728:  Applicant offered and declined out-patient treatment for substance abuse.

970820:  NJP for violation of UCMJ, Article 112a: Wrongfully used marijuana from March through July 1997.
         Award: Forfeiture of $505 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
970827:  Medical evaluation for drug/alcohol dependency found Applicant not dependent.
970904:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.
970904:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
970909:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970923:  COMCRUDESGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991213:  NDRB documentary record review Docket Number ND99-00469 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971003 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. The Applicant received nonjudicial punishment (NJP) for illegal drug use. The Applicant’s self-admission provided a proper and equitable basis for disciplinary action and administrative separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. Relief denied.

Issues 2 and 3. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, 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. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

The Applicant is reminded that he may also petition the Board for Correction of Naval Records (BCNR) at 2 Navy Annex, Washington, D.C. 20370-5100 to review his service record for a change to his characterization of service.














Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - DRUG ABUSE.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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