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NAVY | DRB | 2006_Navy | ND0600784
Original file (ND0600784.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND06-00784

Applicant ’s Request
The application for discharge review was received on 20060427 . The Applicant requests the Discharge 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 designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070315 . 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 by reason of misconduct due to drug abuse.

The NDRB did note administrative error(s) on the original DD Form 214. Block 12c, Net Active Service This Period, should read: “03 11 10.” Block 2 9 , Dates of Time Lost During This Period , should read: “ TL: 93AUG08 to 93AUG27 .” The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - ISSUES AND DOCUMENTATION


Decisional Issues

EQUITY: Applicant’s service was honorable until the last weeks before discharge, to include awards and service in the Gulf War.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214
 Letter to Applicant from Board for Correction of Naval Records, dated April 10, 2006
Certificate of live birth for Applicant
Application for burial benefits (VA 21-530) for burial on January 15, 2005 (2 pages)
Certificate of death of Applicant issued January 14, 2005
Form 1310, Refund due to deceased taxpayer , undated
Citation for outstanding performance for April 1991
 Letter from A. F. C_, Commander, Chaplain Corps, da t ed May 1, 1991 (2)
Letter of Appreciation, dated September 24, 1990
Letter authorizing Applicant the title and to wear uniform of a Second Class Petty Officer, undated
Enlisted Performance Evaluation Report, dated September 24, 1993
Enlisted Performance Evaluation Report, dated July 6, 1991
 Four pages from Applicant ’s service record
 Enlisted Performance Evaluation Report, dated April 20, 1993
 Enlisted Performance Evaluation Report, dated July 25, 1991
 Enlisted Performance Evaluation Report for service ending October 1992

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890706 - 19890924       COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890925              Date of Discharge: 19930924

Length of Service (years, months, days):

         Active: 04 00 00 (Does not exclude lost time )
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 20 day s
         Confinement:              None

Age at Entry: 21

Years Contracted: 4 ( 24 -month extension)

Education Level: 12                                 AFQT: 73

Highest Rate: IC2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 2 ( 6 )                        Behavior: 3 . 2 ( 6 )                  OTA: 3.43

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Unit Commendation, Navy “E” Ribbon, National Defense Service Medal, Southwest Asia Service Medal w/1 Bronze Star), Kuwait Liberation Medal, S ea Service Deployment Ribbon (Second Award)


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 :

920420:  Retention Warning: Advised of de ficiency (Dereliction of duty: N egligently failed to perform duties as Mess Decks Master-at-Arms on 920316 ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
930901 :  NJP for violation of UCMJ, Article 86: Unauthorized absence from 930808 to 930828.
Violation of UCMJ, Article 112a : Wrongful use of marijuana on 930827.
         Award: Forfeiture of $ 513. 00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 4 . No indication of appeal in the record.

 930902:  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 drug abuse.
930902:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930903:  Substance Abuse Evaluation. Applicant found not dependent. Physician’s comments indicate member admitted use to facilitate discharge due to personal problems related to being underway. [Date extracted from Commanding Officer’s message dated 930907.]

930907 :  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO’s NJP of 930901.

930915 :  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 19930924 by reason of misconduct due to drug abuse (A and B) with a service characterization of 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 dis charge was proper and equitable (C and D).

The Applicant contends that the member’s service was honorable until his last few weeks of duty as evidenced by the his awards and service in the Gulf War. 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 record is marred by a retention warning and nonjudicial punishment proceedings for violations of Articles 86 and 112a of the UCMJ. The Applicant’s violation of Article 112a of the UCMJ is the commission of a serious offense. 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 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 Service Member’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 is not warranted.

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 the 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 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. 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, wrongful 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 .
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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