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NAVY | DRB | 2004_Navy | ND04-01454
Original file (ND04-01454.rtf) Auto-classification: Denied


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


ex-FCSA, USN
Docket No. ND04-01454

Applicant’s Request
The application for discharge review was received on 20040921. The Applicant requested the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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



The Applicant submitted no issues.
Documentation
The Applicant did not provide any additional documentation for the Board to review. He marked the box "WILL NOT BE SUBMITTED. PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS" in the “SUPPORTING DOCUMENTS” section of his DD Form 293.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971220 – 981120*         UNCHAR (Failed to Grad)
          Inactive: USNR (DEP)     981114 - 990113  COG
          Active:                            None                       HON

 * As stated in service record
 Period of Service Under Review :
Date of Enlistment: 990114               Date of Discharge: 020111

 Length of Service (years, months, days):
         Active: 02 11 13 (Includes lost time.)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4 (24 months extension)
Education Level: 11 +(Fail Grad)         AFQT: 70

 Highest Rate: FC3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA**                Behavior: NMA             OTA: NMA
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR
Days of Unauthorized Absence: 15

 **No marks assigned.
 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 :
981114:  Applicant briefed upon and certified understanding of the Navy policy concerning illegal use of drugs.
001011:  Retention Warning: Advised of deficiency (violation of UCMJ Article 92: Failure to obey order or regulation: accessing prohibited material on the internet through a government controlled computer network.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010519:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 134: wrongfully sleeping on post by sentinel or lookout.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010822:  Retention Warning: Advised of deficiency (completed formal Level III Treatment program for alcohol abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010928:  NJP for violation of UCMJ, Article 86: Absence without leave. In that FC3 D_, R_ A. (Applicant), did, on board the USS DEYO (DD989), on or about 0700, 010903, without authority, fail to go to at the time prescribed, his appointed place of duty, to wit: expiration of liberty on board the USS DEYO (DD 989) and did remain so absent until on or about 1600, 010918, a period of fifteen days and nine hours,
violation of UCMJ, Article 87: Missing movement. In that FC3 D_, R_ A. (Applicant), did, on board the USS DEYO (DD 989), on or about 0700, 010905, through design, miss the movement of USS DEYO (DD989) with which he was required in the course of duty to move.
Award: Forfeiture of ½ pay per month for 1 months, extra duty for 10 days, reduction to E-3. No indication of appeal in the record.
010928:  Retention Warning: Advised of deficiency (violation of UCMJ Articles 86: Absence without leave and Article 87: Missing movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
011126:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 011115, tested positive for THC.

 011205:  NJP for violation of UCMJ, Article 86:
Specification: In that FCSN R_ D_ (Applicant), being a member of duty section 4, did, on board USS DEYO (DD-989), on or about 011202, without authority, fail to muster, until 000, 011203 with his watch section,
 Violation of UCMJ, Article 112a:
Specification: In that FCSN R_ D_ (Applicant), did, while on active duty, on board USS DEYO (DD-989), on or about 011105, wrongfully use a controlled substance and supply a urine sample during a Command sweep that was tested positive for THC by the Navy Drug Screening Laboratory, Jacksonville, FL.
         Award: Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
011212:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse.
011212:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, and elected to waive all rights.
011212:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: SVCMN tested positive for marijuana on a command urinalysis sweep per enclosure (5)(Urinalysis Log Sheet of 5 Nov 01). Request administrative separation with character of service of under Other Than Honorable conditions.
020108:  Commander, Carrier Group Two authorized 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 20020111 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).
The Applicant did not introduce any decisional issues for consideration by the Board.
In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge to be proper and equitable . A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s record is devoid of any evidence he was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions for unauthorized absence, missing movement and wrongful use of a controlled substance, to include the appropriate retention and discharge warnings . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.
  
 T here 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. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. The Applicant has not provided any documentation for the Board’s consideration. 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. The Applicant can provide additional documentation to support any claims of post-service accomplishments 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 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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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