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NAVY | DRB | 1999_Navy | ND99-00006
Original file (ND99-00006.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-00006

Applicant’s Request
The application for discharge review, received 980928, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to re-enter military (army). The applicant requested 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 990913. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       I FN H____ was afloat on USS PAUL F.FOSTER (DD-964) 27 FEB 97 to 97 MAY 06. I was discharged was falsely admitting to using marijuana. I was never given a test to see if I did use it. Before going to captains mast once before for a different matter, I was put on liberty risk because we were in the gulf.
2.       Considering my name is A___ A. H___ and I know of the arabic language, I was considered a threat, that's discrimination considering I took an oath to serve my country honorably and with courage, when I admitted to covering up the drug with vinegar the captain believe it and issued me (FM1), half months pay doced/and discharged.
3.       Now that I'm home I look and see I lost a lot. I would hope on the lord above to grant me FN H____ a chance to come to the army once again for a different branch of service, to prove to you as the board some letters of recommendations have been given to me for the military when I was in high school.
4.       As a civilian once again I'm working hard to get to the U.S. Army where Sergeant First Class K____ will offer a waiver if possible to become a airborne ranger. With help from Petty Officer Second Class C_____ he's willing to prove, how motivated I'm wanting to come back to the service. I liked my discharge waived to a RE-3 or better to go to a different branch.
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):
         Active: USN                        None
         Inactive: USNR (DEP)     961022 - 961028  COG

 Period of Service Under Review :
Date of Enlistment: 961029               Date of Discharge: 970613

 Length of Service (years, months, days):

         Active: 00 07 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Ribbon

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 3630620.

 Chronological Listing of Significant Service Events :

970420:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order, violation of UCMJ Article 107: False Statement.
         Award: Forfeiture of $437 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
970420:  Retention Warning: Advised of deficiency (violation of UCMJ, Article 92 - Failure to Obey a Lawful Order; violation of Article, 107 - False Official Statement CO's NJP 970420), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970503:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of $450.45 per month for 2 months, restriction and extra duty for 30 days and administrative separation. No indication of appeal in the record.
970512:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offenses as evidenced by CO's NJP of 970420 for violation of UCMJ, Article 92: failure to obey a lawful written order and violation of UCMJ, Article 107: false statement, by reason of drug abuse as evidenced by CO's NJP of 970503 for violation of UCMJ, Article 112a: wrongful use of a controlled substance, and by reason of misconduct due to a pattern of misconduct as evidenced by CO's NJP on 970420 and 970503.
970512:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
970520:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to drug abuse and misconduct due to a pattern of misconduct. CO’s verbatim comments: “FR Hafsi is being processed for Misconduct due to a pattern of Misconduct, Misconduct due to Commission of Serious Offenses, and Misconduct due to Drug Abuse. His performance while attached to the USS PAUL F FOSTER was less than adequate due to his drug problem and lack of compliance with standard naval orders. He has no potential for further naval service. He has been and probably would continue to be an administrative burden to any command. Therefore, I recommend FR Hafsi be separated from the naval service with an Other Than Honorable Discharge.
970606:  Commander, Naval Base Seattle 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 970613 under other than honorable conditions for misconduct due to drug abuse (use) (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).

The applicant introduced no decisional issues for consideration by the Board. The Board does not believe the applicant’s claim that he falsely admitted using marijuana.
Nor does the Board believe the applicant was discriminated against because of his ethnic origin when he was placed on a liberty risk status when assigned in the Arabian Gulf.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE5, Washington, DC 20380-3001. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, is therefore, denied.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 30 Jun 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT DRUG ABUSE

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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