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NAVY | DRB | 2004_Navy | ND04-01164
Original file (ND04-01164.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND04-01164

Applicant’s Request
The application for discharge review was received on 20040714. 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. Subsequent to the submission of DD Form 293 the Applicant obtained representation from Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224. After a thorough review of the available 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. “Respectfully request upgrade discharge of service; US Navy to improve reference for jobs in the future (may represent an obstacle to get hired).”

2. “If there is possibility to change re-code with character of discharge.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 3. “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge (OTH) to Honorable.

The FSM served on active service from February 29, 2000 to May 31, 2002 at which time he was discharged by reason of Misconduct. Prior to this he maintained Honorable service in the United States Army from January 30, 1996 to January 29, 2000.

The FSM contends the current discharge is improper because appropriate consideration was not given to his prior honorable service in the Army, nor the good Navy service.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

In continuance, the FSM goes onto explain that the problem with his active duty was basically that he never felt like he belonged, that he was discriminated against because he was from Puerto Rico. Since his discharge he has taken steps to improve despite the current discharge, achieving a degree in Associates Degree in Accounting, and beginning to expand that to a Bachelor Degree.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

 We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 dtd 020531
Applicant’s DD Form 214 dtd 000129
Disabled American Veterans Board of Correction of Military Records/Discharge Review Board package (22 pages)
VA Form 21-22 dtd 040705
BCNR ltr dtd 030414
4 pages from Applicant’s service record
Police records check dtd 031218
Enrollment verification dtd 040402
Graduation certification dtd 040108
Employment verification dtd 040506
Unofficial university transcript printed from web 040607, no name associated with document (7 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None           
         Active: USA                        960130 - 000129  HON

 Period of Service Under Review :
Date of Enlistment: 000229               Date of Discharge: 020531

 Length of Service (years, months, days):

         Active: 02 03 02
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

Education Level: 13                        AFQT: 53

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)             Behavior: 2.33 (3)                OTA: 2.83

 Military Decorations: None

 Unit/Campaign/Service Awards: Army Lapel Button, Army Achievement Medal, Army Good Conduct Medal, Army Service Ribbon, Sharpshooter Qualification Badge w/ Rifle Bar, SSDR, NDSM

 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 :

001208:  Retention Warning: Advised of deficiency (wrongful use of a controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 001208:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of 1/2 pay per month for 1 month(s), restriction and extra duty for 45 days, reduction to RIR, reduction susp. 6 mos. No indication of appeal in the record.
020508:  Summary Court-Martial: Violation of Article 112a, wrongful use of a controlled substance.
 Sentence: 60 days restriction, forfeiture 2/3 pay for 1 month, reduction to E-1.
020523:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and by reason of misconduct due to a pattern of misconduct.

020530:  Commander, Amphibious Group TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

*Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020531 under other than honorable conditions by reason of misconduct due to drug abuse. (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. 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 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

Issue 2. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issue 3. 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 both the award of nonjudicial punishment (NJP) for illegal drug use and a summary court-martial conviction for illegal drug use thus substantiating the misconduct for which he was separated. The Applicant’s allegations, that he was discriminated against because he was from Puerto Rico, do not refute the presumption of regularity in this case. 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 consider 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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

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

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

 D. 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.


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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