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NAVY | DRB | 2004_Navy | ND04-01112
Original file (ND04-01112.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND04-01112

Applicant’s Request
The application for discharge review was received on 20040629. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary record review was conducted in Washington, D.C. on 20041122. 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

1. “My discharge was inequitable, because it was based solely on one incident. In which I experimented and paid the consequences, I am ready to contribute to society. I served 30 months on active duty without any incidents. My service record will prove that overall I was a good sailor. I received a reward for outstanding uniform appearance, played an important role in Operation Iraqi Freedom. Received captains letter for outstanding performance on O perational R eactor S afeguard E xamination (ourse) and many more achievements

I want to contribute to society now I have been turned around from many jobs that I was qualified for based on my discharge. Eventually I want to become an law enforcement officer I have been drug free since discharged I am asking the board to please be considerate with a decision. Eventually once my discharge is upgraded I would like to join the reserves.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
The Applicant did not submit any additional documentation for the Board to consider while receiving his case.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010320 - 010710  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010711               Date of Discharge: 031209

 Length of Service (years, months, days):

         Active: 02 04 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.75 (4)    Behavior: 3.25 (4)                OTA: 3.02

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NUC, NDSM, NER, AFEM, SSDR

 Days of Unauthorized Absence: 2

 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 :

031106:  NAVDRUGLAB, San Diego, CA, reported Applicant ’ s urine sample, received 031103, tested positive for THC.
        
031107:  NJP for violation of UCMJ, Article 112a (2 specifications): Specification 1, Wrongful possession of marijuana on or about 03OCT16 and Specification 2, Wrongful use of marijuana on or about 03OCT16.
         Award: Forfeiture of $751 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

031107:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse.
031107:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
031120:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031121:  COMCRUDESGRU 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 20031209 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 error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. 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 nonjudicial punishment (NJP) for violation of Article 112a of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an general (under honorable conditions) characterization of service. Relief denied.

The following is provided for the edification of the Applicant. 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, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Therefore, no relief will be granted.


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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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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