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NAVY | DRB | 2004_Navy | ND0401279
Original file (ND0401279.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND04-01279

Applicant’s Request
The application for discharge review was received on 20040810. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713. 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 4-1 that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Due to my wish to become in active status. To change some discrepancies on the DD 214.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 dated November 16, 1993
Applicant’s DD Form 214 dated June 29, 2003 (Member 4 and 1)
Letter from Congressman S___ R___, dated May 12, 2004
Letter from Congressman S___ R___, dated February 7, 2005
Copy of Applicant’s Certificate of Birth
Copy of Applicant’s Social Security Card
Enlisted Contract Information dated March 29, 2002 (4 pages)
Montgomery GI Bill Statement of Understanding dated April 21, 1989
Administrative Remarks dated April 21, 1989
Contingent Enlistment Statement of Understanding dated April 21, 1989
Seaman Apprenticeship Enlistment Contract dated April 21, 1989
Seaman Apprenticeship Certificate of Completion dated July 24, 1989
Letter of Appreciation dated December 18, 1989
Administrative Message from USCINCPAC REP PHILIPPINES SUBIC BAY dated November 2, 1989
Letter of Appreciation dated August 31, 1990
Letter of Appreciation dated October 1, 1990
Letter of Commendation, undated
Third Class Petty Officer Title Authorization dated July 16, 1991
Letter of Appreciation dated October 1, 1991
Certificate of Recognition, undated
Permanent Change of Station Order Delivery Letter dated August 27, 1991
Permanent Change of Station Orders Letter dated July 14, 1991

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890421 - 890424  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890425               Date of Discharge: 931116

 Length of Service (years, months, days):

         Active: 04 06 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (7 month extension)

 Education Level: 12                        AFQT: 28

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.83 (6)             Behavior: 3.53 (6)                OTA: 3.63

 Military Decorations: None

 Unit/Campaign/Service Awards: Sea Service Deployment Ribbon (2), National Defense Service Medal, Southwest Asia Service Ribbon (wb*)

 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 3630620.

 Chronological Listing of Significant Service Events :

890525:  Drug and Alcohol Abuse Report: Indicates marijuana abuse detected by service directed urinalysis, found not dependent, is amenable and eligible for Level I Treatment.

910322:  Applicant counseled for failure to meet weight/body fat requirements due to dietary indiscretion and not the result of a physical disability.

920416:  NJP for violation of UCMJ, Article 90: Assaulting or willfully disobeying a Superior Commissioned Officer, violation of UCMJ, Article 92: Failure to Obey Lawful Order or Regulation.
Award: Restriction and extra duty for 30 days, reduction to E-3 (RIR suspended for 6 months). No indication of appeal in the record.
920423:  Retention Warning: Advised of deficiency (Inconsistent work performance and undesirable military behavior.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930315:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 930309, tested positive for [THC].

930401:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession of controlled substance (THC).
         Award: Forfeiture of $520.00 pay per month for 2 months, restriction for 60 days, reduction to E-3. No indication of appeal in the record.
930517:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment and by reason of misconduct due to commission of a serious offense as evidenced by CO’s NJP dated 920416: Violation of UCMJ Article 90-Assaulting or willfully disobeying a superior commissioned officer.
930517:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930520:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, and by unanimous vote, found the Applicant did not commit commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. The Board recommended suspension of separation.

930824:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO’s NJP of 930401 for violation of UCMJ Article 112(a) and misconduct due to commission of a serious offense as evidenced by CO’s NJP of 920405 for violation of UCMJ Article 90 and Article 92.

930917:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931116 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. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by a counseling for his failure to meet weight/body fat standards, a retention warning and two nonjudicial punishment proceedings for violations of Articles 90, 92 and 112a of the UCMJ. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided documentation concerning his recent enlistment in the U.S. Naval Reserve, to include his DD214 showing his honorable discharge due to completion of required active service on 20050512, as documentation of his post-service. While the Board was impressed with the Applicant’s recent honorable service, the Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, to include rehabilitation, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

Concerning reenlistment, 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. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 concerning 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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