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

  ex-EMFN, USN
Docket No. ND05-00196

Applicant’s Request

The application for discharge review was received on 20041110.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050201.  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:

1.  “To whom this may concern,

I’m requesting a discharge upgrade for it would help me get unemployment benefits and help me get a job.  I have been laid off for two weeks and I am struggling to support myself and my family.  I know I messed up my naval career and I want to start on a clean slate.  Please help me and my family.

Very respectfully,

A_ G_ (Applicant)”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

	None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USAR (DEP)	9410XX - 9411XX	ELS
    USNR (DEP)	960227 - 960506	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  960507		Date of Discharge:  040223

Length of Service (years, months, days):

	Active:    07  09  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12, 25, and 11 months extension)

Education Level:  12			AFQT:  71

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (11)		Behavior:  3.55 (11)		OTA:  3.63

Military Decorations:  NAM, ESWS

Unit/Campaign/Service Awards:  NER (2), GCM, NDSM, AFEM, SSDR (2), NMCOSR (2), Flag LOC (2)

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:

960509:	You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings.  License plate not displayed, 11/95, San Diego, CA, PD $10.00; possession of cigarettes by minor, 9/94, San Diego, CA, PD $25.00/4 hours tobacco awareness class.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

961008:	Retention Warning:  Advised of deficiency (Poor military performance, to wit: underage drinking and drinking 12 hours prior to a training day), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980925:	NJP for violation of UCMJ, Article 92:  Dereliction of duty on 980920.
Award: Extra duty for 30 days.  No indication of appeal in the record.

980925:	Retention Warning:  Advised of deficiency (Dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000507:	Enlistment extended for 12 months.

010507:	Enlistment extended for 25 months.

030607:	Enlistment extended for 11 months.

030904:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance on 030820.
Award:  Forfeiture of $912.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-4.  No indication of appeal in the record.

030930:	Counseling:  Advised of deficiency (Failure to obey order or regulation, to wit: ACUONEINST 5810.2J, Rules and Regulations governing personnel in restricted or extra duty status, by which you failed to obey by not being in your rack at 2200.), notified of corrective actions and assistance available, and advised of consequences of further deficiencies.

031204:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to pattern of misconduct, and misconduct due to commission of a serious offense.

031205:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

031211:	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, misconduct due to pattern of misconduct, and misconduct due to commission of a serious offense that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

040129:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to pattern of misconduct, and misconduct due to commission of a serious offense.

040217:	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 20040223 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:  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.  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 nonjudicial punishment proceedings for violations of UCMJ Article 92, dereliction of duty, and Article 112a, wrongful use of a controlled substance.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant desires a discharge upgrade to be eligible for unemployment benefits and to enhance his employment opportunities.  While the Board sympathizes with the Applicant’s situation, these issues do not 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.  Unlike the NDRB, other federal, state and local agencies, such as the Veterans Administration, determine eligibility for post-service benefits.  As such, there is no law or regulation that grants recharacterization solely on the issues of obtaining Veterans' benefits, enhancing employment opportunities, or pursuing educational goals.  

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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 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