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NAVY | DRB | 1999_Navy | ND99-00527
Original file (ND99-00527.rtf) Auto-classification: Denied


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

ex-BMSN, USNR
Docket No. ND99-00527

Applicant’s Request
The application for discharge review, received 990304, requested that the characterization of service on the discharge be changed to honorable or 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 000104. 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, authority: NAVMILPERSMAN, Article 3630620.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 91 MAR 05 UNTIL 93 FEB 19". The original DD Form 214 should be corrected or reissued as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. The main issue I would submit is as follows. I was never offered any type of substance abuse treatment, I tested positive for THC on three separate occasions and I was never screened for dependency. Bottom line: I needed help! I never got it.

2. Due to procedural discrepancies I was retained after, my first positive urinalysis. My command was very hard and cold towards me, understandibly. However, I was an outstanding sailor. I turned in many hours of hard duty & volunteer work.

3. Until arriving at SIMA INGLESIDE my service record was impeccable. I was on a fast track to a successful carreer. My service record says it all. I was an asset to the Navy, and I could have remained an asset.

4. Since my OTH discharge I have worked very hard to build a life. It has been almost four years. I have held the same job for 3 1/2 years. I have done this on my own, without the help of the Navy. I am asking for a chance.

My service record is very good. I would ask for a chance to get ahead. My discharge classification prevents me from moving ahead with my life. During my time in service. I believe that I was an asset to the Navy. Check the records. If the Navy would have helped me, I still could be. I'm not asking for favors. I just want what I, believe I have earned. A respectable discharge, and a chance to build a future for myself and for my family. Sincerely (applicant)

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Copy of DD Form 214
Copy of letter of commendation dated 26 April 1991
Copy of mess cook of the month dated 12 January 1992
Copy of letter of appreciation dated 20 March 1992
Copy of commendation for 1 April to 30 June 1992
Copy of letter of appreciation dated 1 February 1993
Copies of Performance Evaluations Reports for 91Jun15 to 92Jan31, 92Feb01 to 93Jan15, 93Jan16 to 93Mar24 and 93Dec09 to 95Jan31

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR              910305 - 930219  HON
         Inactive: USNR            910225 - 910304  COG

 Period of Service Under Review :
Date of Enlistment: 930220               Date of Discharge: 950707

 Length of Service (years, months, days):

         Active: 02 04 18
         Inactive: None

 Age at Entry: 22                          Years Contracted: 3

 Education Level: 11 GED           AFQT: 86

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.52 (5)    Behavior: 2.64 (5)                OTA: 3.52

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Commendation

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug Abuse, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

931207:  NAVDRUGLAB Great Lakes, IL, reported applicant’s urine sample, received 931201, tested positive for THC.
931209:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 23Nov93.
         Award: Forfeiture of $501 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
940110:  Drug and Alcohol Abuse Report: Marijuana abuse, random urinalysis 23Nov93. CAAC recommends separate via VA hospital. Clinical psychologist found applicant dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital.
950210:  NAVDRUGLAB Great Lakes, reported applicant's urine sample, received 950202, tested positive for THC.
950420:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 31Jan95.
Award: Forfeiture of $501 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
950426:  NAVDRUGLAB Great Lakes, reported applicant's urine sample, received 950420, tested positive for THC.
950428:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive random sample urinalysis testing for THC on 31 January 1995.
950428:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.
950501:  Medical evaluation by CAAC for drug abuse found the applicant to be a drug abuser, not drug dependent.

950517:  Drug dependency screening: I concur with admin discharge.

 950519:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments: (verbatim): Seaman Apprentice (applicant's) performance and conduct has deteriorated from above average to unacceptable. Due to his poor performance and constant decline in reliability, he now requires constant supervision. Prior to the 31 January 1995 positive random urinalysis test, Seaman Apprentice (applicant) had produced a positive random urinalysis in December 1993 (enclosure (4)). In accordance with the mandatory procession requirements, an Administrative Separation Board was convened. However, because the respondent is a TAR and none of the three appointed Board members were U.S. Naval Reserve, the Board was incorrectly composed and the results invalidated. A second Board was convened; however, due to the senior member's failure to follow proper Board procedures during the hearing the Board's results were also invalidated. On 18 April 1995, Seaman Apprentice (applicant) was requested to participate in a command directed urinalysis because of his failure to participate in a SIMA "Repair Department" unit sweep that was conducted on 17 April 1995. Enclosure (8) indicates Seaman Apprentice (applicant's) positive result, his third positive urinalysis within approximately 16 months. Seaman Apprentice (applicant's) constant disrespect for naval policy has gone too far. It is my recommendation, based upon the three positive urinalysis results, that he be separated immediately. It is my further recommendation that the be separated under Other Than Honorable conditions as the result of his positive random urinalysis of 31 January 1995.

         There was a delay in processing because member refused NJP. During the week prior to scheduled courts-martial member elected NJP.

950614:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

950616:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty, random urinalysis 950210. CAAC, physician and Commanding Officer recommended separate not via VA hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 950707 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 response to applicant’s issue 1, the Board found in the applicant’s record that he was screened for dependency on 940110 and 950501 by CAAC and clinical psychologists and found not dependent. This is not an issue.

In response to applicant’s issues 2 and 3, even though the applicant’s service record is very good, the applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on this issue.

In response to applicant’s issue 4, 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 the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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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