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NAVY | DRB | 2006_Navy | ND0600739
Original file (ND0600739.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00739

Applicant’s Request
The application for discharge review was received on 20060509 . The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070308 . 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 ization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.




PART I - ISSUES AND DOCUMENTATION


Decisional Issues:

Equity – post-service
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Character Reference ltr from D_ A. L_, Manager, Army Aviation and NASA Programs, dtd March 1, 2006
Character Reference ltr from S_ A_, President, A to Z Packing, Inc., dtd March 28, 2006
 Character Reference ltr from E _ M. S_, Manager, S, State Farm Insuarance , dtd April 5, 2005


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19930918 - 19940929      ELS
          Inactive: USNR (DEP)     199 50307 - 19950524       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19950525              Date of Discharge: 19971010

Length of Service (years, months, days):

          Active: 0 2 04 16
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 8

Years Contracted: 4 ( 24 -month extension)

Education Level: 12                                 AFQT: 89

Highest Rate: MM 3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 ( 1 )     Behavior: 3 .0 ( 2 )                 OTA: 3 . 24

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal



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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

970822 :  NJP for violation of UCMJ, Article 112a (3 Specs) : Wrongful use of controlled substance .
          Award: Forfeiture of $ 500. 00 pay per month for 2 month s , extra duty for 45 days, reduction to E- 3 . No indication of appeal in the record.
970822 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to misconduct due to drug abuse as evidenced by [Applicant’s] voluntary statement and psychiatric evaluation and by reason of fraudulent entry in to the Naval service as evidenced by [Applicant’s] voluntary statement and psychiatric evaluation, and by reason of convenience of the government – personality disorder as evidenced by psychiatric evaluation.

970822 :  Applicant advised of rights and having elected not to consult with counsel with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970904:  Commander, Submarine Squadron 1 , recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by [Applicant’s] voluntary statement and psychiatric evaluation and by reason of fraudulent entry in to the Naval service as evidenced by [Applicant’s] voluntary statement and psychiatric evaluation, and by reason of convenience of the government – personality disorder as evidenced by psychiatric evaluation .

970922 :  Commander Submarine Force, U. S. Pacific Fleet 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 19971010 by reason of misconduct due to drug abuse (A and B) with a service characterization under other than honorable conditions. 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 Board presumed regularity in the conduct of governmental affairs (E).
The Applicant requests upgrade of the characterization of his discharge. Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. 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. There is credible evidence in the record that the Applicant used illegal drugs. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable. Relief denied.

The Applicant requests upgrade in order to obtain educational benefits. The Veterans Administration determines eligibility for post-service benefits, not the Naval 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 of the propriety and equity of the discharge.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 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 documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. 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 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - DRUG ABUSE.
B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (use of a controlled substance).

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 .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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