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NAVY | DRB | 2004_Navy | ND04-01019
Original file (ND04-01019.rtf) Auto-classification: Denied


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

ex-EMFA, USN
Docket No. ND04-01019

Applicant’s Request
The application for discharge review was received on 20040610. 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 discharge review was conducted in Washington, D.C. on 20041112. 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
Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Twelve pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     921026 - 921123  COG
                  USNR (DEP)      910409 - 911209  ELS
         Active: None

 Period of Service Under Review :
Date of Enlistment: 921124               Date of Discharge: 960522

 Length of Service (years, months, days):

         Active: 03 05 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 82

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)    Behavior: 3.50 (4)                OTA: 3.50 (4.0 scale)
                  5.00 (1)                 3.50 (1)                          4.29 (5.0 scale)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (2), AFEM, SASM, NAM, BER (2), AFSM (2), LA, CC (2)

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 3630620.

 Chronological Listing of Significant Service Events :

930318:  NJP for violation of UCMJ, Article 92 (2 specs): Wrongfully consuming alcoholic beverages under the age of 21 on 930305 and 930306.
         Award: Forfeiture of $250 per month for 2 months, restriction for 30 days, extra duty for 15 days, reduction to E-2. No indication of appeal in the record.
960105:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Articles 128, assault and 134, drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960105:  NJP for violation of UCMJ, Article 128: Assault.
Award: Forfeiture of $400 per month, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
960426:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine).
         Award: Forfeiture of $604 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
960427:  Vacate suspended punishment from NJP dated 960105.

 960429:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violation of UCMJ, Article 112a.
960429:  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.
960430:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

960509:  BUPERS 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 19960522 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. There is credible evidence in the record that the Applicant used illegal drugs. Even one instance of drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. In addition to receiving nonjudicial punishment for the illegal drug use, the Applicant received two other NJPs for assault and disobedience of a lawful order. The positive aspects of the Applicant’s service record do not mitigate his misconduct. Relief denied.
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 is evident 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.


















Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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