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NAVY | DRB | 2004_Navy | ND04-01118
Original file (ND04-01118.rtf) Auto-classification: Denied


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

ex-AKAN, USN
Docket No. ND04-01118

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 honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The Applicant did not respond.

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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I was so close to finishing my tour that it was unfair to give me a bad discharge.”

“2. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.”

“3. My average conduct and efficiency rating/behavior and proficiency marks were good, or pretty good.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     851202 - 851215  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 851216               Date of Discharge: 891213

 Length of Service (years, months, days):

         Active: 03 11 28
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12 (GED)                          AFQT: 47

 Highest Rate: AK3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (6)    Behavior: 3.56 (6)                OTA: 3.73

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

870825:  Retention Warning: Advised of deficiency (Your record of misconduct due to your failure to go to appointed place of duty, should it continue, will create a pattern of misconduct which cannot be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
870825:  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty, to wit: S-8 Morning Quarters on or about 870731, and fail to go to appointed place of duty, to wit: Duty Section muster on or about 870801.
         Award: Restriction for 5 days. No indication of appeal in the record.

890121:  NJP for violation of UCMJ, Article 108: Wrongful disposition on government property on 881223.
Award: Forfeiture of $200.00 pay per month for 2 months (1 month suspended for 6 months), restriction for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
890825:  DAAR indicates cocaine abuse as a result of a random urinalysis, dependency not determined, not eligible for rehabilitation, recommended for separation from service.

890901:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine during the period of 15 to 25 July 1989.
         Award: Forfeiture of $446.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
891017:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to pattern of misconduct, and misconduct due to drug abuse.

891017:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

891020:  Medical evaluation for drug abuse found the Applicant not psychologically or physiologically dependent on drugs, is amenable to treatment, recommended for separation.

891028:  Applicant waived right to Administrative Discharge Board after consulting with counsel. Applicant elected to make a written statement and copies of all documents being forwarded to NMPC. [Extracted from CO’s message.]

891030:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense, and misconduct due to drug abuse.

891101:  CNMPC 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 19891213 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: 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. The Applicant’s service was marred by award of nonjudicial punishment on three occasions for violating the UCMJ, Articles 86, 108 and 112a thus substantiating the misconduct. 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 honorable characterization of service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.











Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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