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NAVY | DRB | 1999_Navy | ND99-00126
Original file (ND99-00126.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-CTMSR, USN
Docket No. ND99-00126

Applicant’s Request
The application for discharge review, received 981028, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I believe that I RECEIVED A fair discharge, but I BELEVE it should be changed due to my post-military life changes and potential contribution in the future to society.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board pertaining to applicant’s goals and purposes
36 pages from applicant's military service record
Documents pertaining to post-military educational pursuits
Various letters pertaining to post-service job performance

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     810103 - 810719  COG

 Period of Service Under Review :
Date of Enlistment: 810720               Date of Discharge: 850621

 Length of Service (years, months, days):

         Active: 03 11 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 83

 Highest Rate: CTM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.55 (4)    Behavior: 2.46 (4)                OTA: 2.89

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

810930:  Service Record entry noting applicant was UA from 0730, 28 Sep 81 from SERSCOLCOM, NTC, Orlando, Fl. Returned from UA 1100, @8 Sep 81. UA for 3 hours, 30 minutes.

840220:  Retention Warning: Advised of deficiency (drug abuse), advised of consequences of further deficiencies, and issued discharge warning.

840323:  NJP for violation of UCMJ, Article 134: Did while active duty violate a lawful general order by having a positive test for THC in his urine sample.
         Award: Forfeiture of $350.00 pay per month for 2 months, reduction to CTMSN. No indication of appeal in the record.
840509:  Substance Abuse Report: Marijuana abuse, Feb84, less than monthly, ashore off duty, random urinalysis. CAAC found applicant not dependent and recommended Level I treatment. Commanding officer recommend retain and refer to CAAC, Level II. Applicant awarded NJP. CAAC reports applicant not amenable and recommends return to duty and hold accountable. CTMSN (applicant) has shown a positive attitude since returning to full duty. He has carried out his assigned duties in an effective manner and has accepted all new job assignments willingly. He has been cooperative with his supervisors and has interacted extremely well with his peers.

841016:  NJP for violation of UCMJ, Article 112a: On or about 12 Sep 84, wrongfully use marijuana as evidenced by a positive test for THC in his urine sample taken this date.
Award: Forfeiture of $300.00 pay per month for 2 months, reduction to CTMSA. No indication of appeal in the record.
841018:  Retention Warning: Advised of deficiency (drug abuse), advised of consequences of further deficiencies, and issued discharge warning.

841114:  NJP for violation of UCMJ, Article 112a: Did wrongfully use marijuana.
         Award: Reduction to CTMSR; extra duties for 45 days.
841128:  Substance Abuse Report: Marijuana abuse, Feb84 - Oct84, 1-3 times per week, ashore off duty. CAAC determined applicant is dependent and recommended Level III treatment. Commanding officer recommends retain and drug residential treatment (NDRC). Comments: Applicant awarded NJP following second incident of substance abuse. Applicant submitted specimen under CT premise while assigned to the urinalysis surveillance program. CAAC screening of 26 Oct 84 recommended Level III rehab due to psychological dependence. Applicant then received NJP for third violation of drug abuse as a result of 11 Oct 84 random screening. Applicant presents favorable attitude toward own rehabilitation, however, he has never been afforded Level III rehab effort due to the unusual nature of this case. Applicant's second and third incidents were only one month apart and psychological dependency was not determined until after second incident. Before arrangements could be made to enroll applicant in NDRC, third positive results received. For NMPC: Due unusual circumstances, request waiver for continued service in lieu of processing for separation at this time. For NAVDRUREHCEN San Diego, CA: Request next available Level III bed upon approval of waiver request.

841228:  CNMPC denied request for continued service and on 4Jan85 CNMPC directed ADSEP processing of the Applicant in accordance with MILPERSMAN 3630620 due to three incidents of drug abuse. [Extracted from CO, NAVCOMSTA San Diego ltr of 29MAY85.]

850111:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by positive urinalysis. [Extracted from NAVCOMSTA San Diego's msg of 31JAN85.]

850115:  Applicant advised of his rights and having 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. Applicant did not object to the discharge. [Extracted from NAVCOMSTA San Diego's msg of 31JAN85.]

850131:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "CTMSR (Applicant) has shown to be very cooperative and an exceptional performer, however, he does not acknowledge the Navy's policy for zero tolerance of drugs and persists to use them as evidenced by numerous positive urinalysis. Separation is recommended and the characterization of discharge is general."
850416:  Administrative Discharge Board convened and based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under honorable conditions (general). [Extracted from NAVCOMSTA San Diego's ltr of 29MAY85.]

850529:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "(Applicant) first came to the attention of the command as a possible drug abuser following the 1 February 1984 command Random Urinalysis Screening, when the urine specimen he submitted tested positive for THC.............Since ADSEP processing commenced, SR (Applicant) has continued to abuse THC. On 15 November 1984, 31 January 1985, 8 February 1985, and again on 15 march 1985 he submitted specimens under the command directed (CD) premise, while still assigned to the urinalysis surveillance program, which all tested positive for THC (fourth through seventh recorded incidents of drug abuse). SR (Applicant) is a habitual user of drugs, obviously psychologically dependent, not willing to rehabilitate himself. This abuse has continued even after non-judicial punishment for three of those incidents of abuse. I agree with the findings of the Administrative Discharge Board, convened on 16 April 1985, which recommends SR (Applicant) be separated from Naval Service by reasons of Misconduct due to drug abuse that the discharge be general discharge."

850614:  Applicant was offered but declined in-patient treatment at a VA hospital nearest his home of record.

850621:  CNMPC directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use). [Extracted from applicant's DD Form 214.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 850621 under honorable conditions (general) 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 following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. 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. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/84, effective
17 Sep 84 until 15 Dec 85, 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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