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NAVY | DRB | 2004_Navy | ND04-01346
Original file (ND04-01346.rtf) Auto-classification: Denied


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

ex-ABHAA, USN
Docket No. ND04-01346

Applicant’s Request
The application for discharge review was received on 20040824. 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 review was conducted in Washington, D.C. on 20050201. 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: GENERAL (UNDER 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. “I have been out of the military for 6 years, working non stop. I can’t find a job that I want due to education. I need this upgrade for that reason. So I can work & support my family to show my children that you can get a second chance in life. I haven’t been in any trouble at all. I just want to make a good life for my family. To be a man my wife can respect, and my sons can look up to. Please help me to achieve this goal.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950526 - 950613  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 950614               Date of Discharge: 990609

 Length of Service (years, months, days):

         Active: 03 11 26
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (9 months extension)

 Education Level: 12                        AFQT: 45

 Highest Rate: ABHAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*No Marks made available for review

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

960824:  NJP for violation of UCMJ, Article 86: Abandoning watch or guard on or about 960823, to wit: CONFLAG Station Watch; violation of UCMJ, Article 92: Fail to obey lawful general order, to wit: CONMAVAIRLANTINST 3100.4B, DTD 940103, by wrongfully possessing writing material on watch; violation of UCMJ, Article 92: Dereliction of duty by failing to stand his watch properly.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
990408:  NJP for violation of UCMJ, Article 112a: (2 Specifications), distribution of marijuana.
Award: Forfeiture of $537.00 pay per month for 1 month (suspended for 3 months), restriction for 45 days and reduction to E-2 (suspended for 30 days x 3 months). No indication of appeal in the record.
Undated:         An Administrative Discharge Board was held and by unanimous vote found that the Applicant did not commit misconduct due to a pattern of misconduct, that the Applicant did commit misconduct due to commission of a serious offense, and that the Applicant did commit misconduct due to drug abuse [Extracted from CO’s message].

990609:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to drug abuse [Extracted from DD-214].

990722:  Commanding Officer recommended discharge by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense, and misconduct due to drug abuse.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990609 with a general (under honorable conditions) for 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant was awarded nonjudicial punishment (NJP) on two separate occasions for a violation of UCMJ Article 112a, wrongful distribution of marijuana and for violations of UCMJ Articles 86, abandoning watch, and 92, failure to obey a lawful order and dereliction of duty. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.
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, credible evidence of a substance free lifestyle, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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), Change 24, effective 20 May 99 until 26 March 2000, 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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