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NAVY | DRB | 1999_Navy | ND99-00085
Original file (ND99-00085.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00085

Applicant’s Request
The application for discharge review, received 981020, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. 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 991004. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I request that my “OTH” discharge be upgraded to “Undesirable/Under Other Than Honorable Discharge” classification as I have been drug free since November 26, 1989. (over 8 years ago). I request due to length of time drug-free.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Letter to applicant from Board for Correction of Naval Records without enclosures
Copy of Enlisted Performance Evaluation Report dated 88Feb27 to 89Jan31

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870930 - 871022  COG

 Period of Service Under Review :
Date of Enlistment: 871023               Date of Discharge: 890606

 Length of Service (years, months, days):

         Active: 01 07 14
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: 12                        AFQT: 46

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)             Behavior: 3.40 (2)                OTA: 3.46

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

 871024:  Applicant briefed this date on the Navy policy on drug and alcohol abuse per OPNAVINST 5350.

890308:  NAVDRUGLAB (San Diego, CA) reported applicant’s urine sample received 890224, tested positive for amphetamines/methamphetamines.
890318:  NJP for violation of UCMJ, Article 112a: Use of controlled substance.
         Award: Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.

890423:  NAVDRUGBLAB (San Diego, CA) reported applicant’s urine sample received 890417, tested positive for amphetamines/methamphetamines.

890424:          Applicant advised of his rights and having elected not to consult consulted with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

890424:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions, by reason of Misconduct due to Drug abuse (Use) as evidenced by the illegal or wrongful use or possession of a controlled substance, the latest offense to have occurred while assigned to USS BRISTOL COUNTY (LST 1198).

890501:  NAVDRUGLAB (San Diego, CA) reported applicant’s urine sample received 890421, tested positive for THC (marijuana.)
890518:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

890523:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (use). Commanding officer’s comments (verbatim): Through his drug abuse SR (applicant) has demonstrated disregard for the Navy and his own well being. Retention of SNM would be counter to the command’s and Navy’s anti-drug abuse policy. His potential for future constructive service is considered nonexistent and is not recommended for retention. Strongly recommend that SNM be discharged from the Naval Service and that the discharge be Under other Than Honorable conditions.

890528:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to drug abuse (Uuse).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890606 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).

In the applicant’s issue 1, the Board found this issue to be without merit. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service. The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance and was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. Additionally, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). At this time the applicant has not provided any documentation of good character and conduct but is encouraged to continue his pursuits. The applicant is reminded that he is eligible for a personal appearance hearing, provided the application is received within 15 years from the date of discharge. Legal representation at personal appearance hearings is highly recommended. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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