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NAVY | DRB | 1999_Navy | ND99-00532
Original file (ND99-00532.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND99-00532

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 1910-146, formerly Article 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My undesirable discharge was inequitable because it was based on one isolated incident in 31 months of service with no other adverse action.

2. My undesirable discharge was improper, because I was not informed of the fact that I should've been allowed a retest if I felt I was innocent.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Federal Drug Testing Custody and Control Form dated March 25, 1998
Copy of specimen verification/chain of custody form dated April 7, 1998
Statement from applicant dated April 23, 1997
Copy of Custody and Control Form dated October 29, 1998
Copy of non-injury status report dated October 30, 1998
Copy of DD Form 214
Statement from applicant dated March 2, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950628 - 950709  COG

 Period of Service Under Review :
Date of Enlistment: 950710               Date of Discharge: 980226

 Length of Service (years, months, days):

         Active: 02 07 17
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 10      GED              AFQT: 77

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, 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, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

950628:  Applicant granted a waiver for one non-minor misdemeanor (carrying a concealed weapon - .38 pistol).
950711:  Counseling: Advised of 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 you could be subject to other judicial or administrative proceedings. Marijuana 2X, 12/86 and 6/95. Any further deficiencies in performance or conduct may result in processing for administrative separation.

960326:  Commanding Officer requested waiver (highly recommending retention for following offenses: 15Jun89 Carrying a concealed weapon, 8May91 Battery with injury: resisting law enforcement; 2Jul92 Obliterating a serial number on handgun.
960501:  Retention Warning: In accordance with BUPERS Washington DC 241833Z Apr 96 you are being retained in the Naval Service in spite of your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service arrest for carrying a concealed weapon (Jun89), battery with injury-resisting law enforcement (May91), and obliterating a serial number on a handgun (Jul92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980128:  NAVDRUGLAB [Jacksonville, FL], reported applicant’s urine sample, received 980120, tested positive for THC.

980130:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 16Jan98.
         Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.
980205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all punishments you received during your current enlistment.
980205:          Applicant advised of his rights and having elected not to consult 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.
980206:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

980219:  COMCARGRU TWO 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 980226 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 applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.
In response to applicant’s issue 2, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation 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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