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NAVY | DRB | 2006_Navy | ND0600977
Original file (ND0600977.rtf) Auto-classification: Denied


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

ex-EMFA, USN
Docket No. ND06-00977

Applicant ’s Request
The application for discharge review was received on 2006071 8 . 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 2007 0523 . 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.



PART I - ISSUES AND DOCUMENTATION


Decisional Issues

Equity – Isolated incident
 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 1 (1) and 4 (3))
Naval Education and Training Program (2 pages)
Enlisted Performance Evaluation Report for period August 19, 1992 to January 31, 1993
Letter from Applicant , dated July 7, 2006
Certificate of Completion of Engineman Class “A” School Course, dated August 19, 1992
 Applicant ’s official transcript from Al Collins Graphic Design School
Grade Report from San Diego City College
Letter from Applicant , dated August 25, 2006
Certificate of Graduation from Special Operations Technician, dated November 15, 1996
Trainee Guide for Naval Special Warfare, Special Operations Technician Course, dated February 1996 (3 pages)
Certificate of Completion, Marine Spill Response Corporation, dated April 8, 1998
Course description
A Guide to Fisheries Stock Assessment from Data to Recommendations (2 pages)
 Sixty-nine pages from Applicant ’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     1991121 8 - 19920217       COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19920218              Date of Discharge: 19940524

Length of Service (years, months, days):

          Active: 0 2 0 3 0 7
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4 ( 24 -month extension)

Education Level: 1 4                                  AFQT: 88

Highest Rate: ENFN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8(1)                Behavior: 3.8 (1)         OTA: 4.0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214 ): National Defense Service Medal
* Not Available


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 :

920214:  Pre-service waiver for drug s granted.

UNDATED:         You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse, in- DEP drug use , and Marij uana x1 ( in- DEP last used January 1992, none used since that date ) . However, any further deficiencies in performance or conduct may result in processing for administrative separation.

940209 :  NJP for violation of UCMJ, Article 112a (2 specs):
          Specification 1: On or about 931118, wrongfully use amphetamine/methamphetamine.
         Specification 2: On or about 931202, wrongfully use amphetamine/methamphetamine.
         Award: Forfeiture of $ 45 0 .00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . No indication of appeal in the record.

 94021 6 :  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.
940228:  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.

940301:  Applicant on administrative leave.

 940321 :  Drug and Alcohol Abuse Report: Amphetamines abuse, ashore off duty. Random urinalysis on 931220. Physician evaluation , determined not dependent , recommended separation , and treatment via VA hospital. Comments: FN B_ ( Applicant ) is an average performer with no potential for further service due to drug abuse.

940406 :  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse .
940517 :  BUPERS directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19940524 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 discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).
The Applicant states her discharge was inequitable because based on “one isolated incident in 24 months of service with no adverse action.” Despite a servicemember’s record of service, 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. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for two instances of illegal drug use, thus substantiating the misconduct for which she was separated. 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 her discharge proper and equitable. Relief denied.

The Applicant provides evidence of post-service accomplishments in support of her request for upgrade. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the re-characterization 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct, which precipitated the 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 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 (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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