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NAVY | DRB | 2005_Navy | ND0500714
Original file (ND0500714.rtf) Auto-classification: Denied


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

ex-SMSN, USN
Docket No. ND05-00714

Applicant’s Request
The application for discharge review was received on 20050323. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). 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 20050727. 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

Issues, as stated

Applicant’s issues, as stated on the application:

“I respectfully request to have my discharge upgraded so I will be able to obtain a respectable career. I do not believe that the discharge I was given is cruel or unfair. I made that bad choice knowing the consequence & I got what I deserve, but since then I have completed a rehabilitation program, turned from a boy to a man & I would like to have a second chance.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Only the service record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19981024 - 19990607               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990608             Date of Discharge: 20011120

 Length of Service (years, months, days):

         Active: 02 05 12
         Inactive: None

 Age at Entry: 17 (Parental Consent)              Years Contracted: 4

 Education Level: 12                                          AFQT: 31

 Highest Rate: SM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)             Behavior: 4.00 (4)                OTA: 3.61

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

011025:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 011019, tested positive for THC.

011030:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 011019, tested positive for THC.

011026:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $711 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
011026:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. The Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
011026:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.
011031:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substances.
         Award: Reduction to E-3. No indication of appeal in the record.
011102:  Commanding Officer, USS Ogden (LPD 5), recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments (verbatim): “Member popped positive for Marijuana twice during random urinalysis screening. Recommend discharge under Other Than Honorable condition.”

011114:  COMPHIBGRU THREE 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 20011120 under other than honorable conditions for misconduct due to drug abuse (A). 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 (B and C).

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. There is credible evidence in the record that the Applicant used illegal drugs. The Applicant was awarded nonjudicial punishment (NJP) twice for violations of UCMJ Article 112a, wrongful drug use, marijuana. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. 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 Naval service. The NDRB is authorized 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.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. 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 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 .

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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