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NAVY | DRB | 1999_Navy | ND99-00950
Original file (ND99-00950.rtf) Auto-classification: Denied


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

ex-SN, USNR
Docket No. ND99-00950

Applicant’s Request
The application for discharge review, received 990707, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000331. 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
1. Issue 1: My service record indicates that I was continuing to improve as a sailor and that I had just received advancement to the rank of "Seaman" on 26 November 1987.

Issue 2: My promotion to "Seaman" was received on 26 November 1987 although one month prior to this advancement NRRC Kearny, New Jersey, according to a transmission from NAVDRUGLAB, NORFOLK, VA, dated and timed at 155OZ on 26 October 1987 informed NRRC Kearny, New Jersey of the alleged misconduct.

Issue 3: My promotion to "Seaman" was received on 26 November 1987 although two weeks prior to this advancement the Commanding Officer of NRRC Kearny, New Jersey, according to a letter dated 12 November 1987 informed the Commander of NWC of the alleged misconduct.

Issue 4: Late in 1987, 1 was told by the Personnel Officer of my unit and the Petty Officer in charge of pay records that if I did not wish to be a drilling reservist all I needed to do was to stop attending drills, be administratively discharged, and apply for an honorable discharge six months after my initial discharge, and that such a request would be granted.

Issue 5: There was another member of the 504 unit who was a civilian law enforcement officer and could not afford to test positive for drugs because he would lose his job, but may have in fact tested positive for drug use. This was a concern amongst people in the unit after the drug test had been given.

Issue 6: A defendant is entitled to notice of proceedings against the defendant and in fact, notice is required for any disciplinary hearing that may have an adverse effect on the defendant.

Issue 7: Due to an inattention to detail, I was not given proper notice of the hearing against me. Indeed, there is, in the record, a certified letter dated 28 December 1987, that was sent to the incorrect address and was returned unsigned to NRRC, Kearny, NJ.

Issue 8: Due to an inattention to detail, I was not given proper notice of the hearing against me. Indeed, there is, in the record, a certified letter dated 13 May 1988, that was sent to the incorrect address and was returned unsigned to NRRC, Kearny, NJ.

 Issue 9:         My address at the relevant times was:
         PO Box 364
                   Princeton Junction, New Jersey 08550

However, the letter of notice dated 28 December 1987, and 13 May 1988, was addressed to:
                  PO Box 364
 Princeton, New Jersey 08550
The omission of the "Junction" in my address had caused problems before with my receiving mail and both and NRRC Kearny had been notified of the problem and had corrected the oversight on more than one occasion.

Issue 10: My father, W_ A. S_, Jr., and his wife, exercised exclusive control over the PO box in Princeton Junction and both can attest that there was no mail addressed from the Navy received at that PO Box after September of 1987.

Issue 11: I was not properly notified of any hearing against me, and since I had been told by the Personnel Officers of my unit that I did not need to attend drills, I was effectively cut off from all proceedings against me.

Issue 12: As a result of the Navy's failure to notify me of the proceeding against me, I was not afforded the right to consult with counsel.

Issue 13: As a result of the Navy's failure to notify me of the proceeding against me, I was not afforded the right to obtain copies of documents that supported the basis of the recommended separation.

Issue 14: As a result of the Navy's failure to notify me of the proceeding against me, I was not afforded the right to request an Administrative Board.

Issue 15: As a result of the Navy's failure to notify me of the proceeding against me, I was not afforded the right to present statements on my own behalf.

Issue 16: As a result of the Navy's failure to notify me of the proceeding against me, I was not afforded the right to representation at an Administrative Board by qualified counsel.

Issue 17: As a result of the Navy's failure to notify me of the proceeding against me, I was not afforded the rights guaranteed by the Due Process Clause of the United States Constitution.

Issue 18: I was only twenty years old when this happened and I relied on those in positions of power over me, officers and high enlisted, to guide me in the right direction. Instead, I was lied to or mislead, and then, when I was no longer in a position to defend myself, I was stabbed in the back by the people whom I was trained to trust.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to BCNR dated 31 Mar 99
Applicant's application (DD Form 149) to BCNR dated 29 Mar 99 with letters of explanation attached
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 840604               Date of Discharge: 880811

 Length of Service (years, months, days):

         Active: 00 03 09
         Inactive: 01 10 29

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 11               AFQT: 85

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5(3)               Behavior: 3.5 (3)                 OTA: 3.53

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
Record shows:
UNDER OTHER THAN HONORABLE CONDITIONS/Unsatisfactory participation in the Naval Service, Authority as NMPC ltr 1900 NMPC-913 of 17 Jul 88.
Correct reason:
 UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.



 Chronological Listing of Significant Service Events :

851116:  NJP for violation of UCMJ, Article 92: failure to obey a lawful order or regulation.
         Award: Forfeiture of drill pay ($46.36) for 2 drills. No indication of appeal in the record.
871028:  NAVDRUGLAB Norfolk Va: Positive for cocaine/THC.

 871112:  Drug report submitted by CO, NRRC, Kearny: Abuse of Cocaine, Not determined, Recommend separate from service (not via VA hospital), self-referral/disclosure in OCT 87, Eligible and accepted for rehabilitation. Commanding Officer's action: member being processed for separation based on guidance set forth in OPNAVINST 5350.4A.

871228:  Affidavit of Service by Mail: LTJG P_ signed certified statement that a letter was mailed on 28 Dec 87. Return Receipt Requested returned to LTJG P_.

871230:  Letter of intent to administratively separate under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive result on a random monthly urinalysis screening was prepared. No evidence that letter was given to individual or sent via certified mail, return receipt requested. [No indication that applicant received Letter of Notification/Statement of Awareness.]
880325:  Commanding officer recommended discharge by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "SN (Applicant) was tested positive on a random urinalysis screening for Cocaine and THC. It is requested that he be administratively separated with a discharge as warranted by his service record. Member has refused to participate in the command's urinalysis program and desires no further affiliation with the Naval Reserve Program."

880414:  CNMPC advised NRC Kearny NJ that applicant's discharge processing held and to reexecute the Letter of Notification and Statement of Awareness and to afford member a minimum of 30 days to respond.
880513:  Letter of intent to administratively separate under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive result on a random monthly urinalysis screening was sent via certified mail, return receipt requested.

880513:  Affidavit of Service by Mail: LTJG P_ signed certified statement that the Letter of Notification/Statement of Awareness was mailed on 13 May 88. Return Receipt Requested returned to LTJG P_.
880622:  Commanding officer recommended discharge by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "SN (Applicant) was tested positive on a random urinalysis screening for Cocaine and THC. It is requested that he be administratively separated with a discharge as warranted by his service record. Member has refused to participate in the command's urinalysis program and desires no further affiliation with the Naval Reserve Program.

880717:  CNMPC 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 880811 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).
1. The applicant’s first issue states: “My service record indicates that I was continuing to improve as a sailor and that I had just received advancement to the rank of "Seaman" on 26 November 1987.” The NDRB found this issue to be without merit. The significant elements of the applicants documented misconduct outweigh the positive aspects of his service. Relief denied.

2. The applicant’s second issue states: “My promotion to "Seaman" was received on 26 November 1987 although one month prior to this advancement NRRC Kearny, New Jersey, according to a transmission from NAVDRUGLAB, NORFOLK, VA, dated and timed at 155OZ on 26 October 1987 informed NRRC Kearny, New Jersey of the alleged misconduct.” The NDRB found this issue without relevance. Relief not warranted.

3. The applicant’s third issue states: “My promotion to "Seaman" was received on 26 November 1987 although two weeks prior to this advancement the Commanding Officer of NRRC Kearny, New Jersey, according to a letter dated 12 November 1987 informed the Commander of NWC of the alleged misconduct.” The NDRB found this issue without merit and irrelevant. Relief denied.

4. The applicant’s fourth issue states: “ Late in 1987, 1 was told by the Personnel Officer of my unit and the Petty Officer in charge of pay records that if I did not wish to be a drilling reservist all I needed to do was to stop attending drills, be administratively discharged, and apply for an honorable discharge six months after my initial discharge, and that such a request would be granted.” There is no documentation in the applicant’s service record that such an arrangement was made. Further, the applicant provided no documentation to support this issue. Relief is not warranted.

5. The applicant’s fifth issue states: ‘There was another member of the 504 unit who was a civilian law enforcement officer and could not afford to test positive for drugs because he would lose his job, but may have in fact tested positive for drug use. This was a concern amongst people in the unit after the drug test had been given.” The NDRB found this issue without merit. Relief denied.

6. The applicant’s sixth issue states: “A defendant is entitled to notice of proceedings against the defendant and in fact, notice is required for any disciplinary hearing that may have an adverse effect on the defendant.” The NDRB found reasonable efforts were taken to inform the applicant of his discharge, but he did not receive certified mail sent to his home of record.

7. The applicant’s seventh issue states: “Due to an inattention to detail, I was not given proper notice of the hearing against me. Indeed, there is, in the record, a certified letter dated 28 December 1987, that was sent to the incorrect address and was returned unsigned to NRRC, Kearny, NJ.” The NDRB recognized the certified letter was sent to “Princeton” vice “Princeton Junction”. The NDRB found that the correct name, PO Box and Zip code were on the letter. The NDRB presumed regularity in the delivery of certified mail and normal postal procedures were used. Also, the parent command made a good faith effort in the delivery on the applicant’s discharge papers. The NDRB used the same reasoning in deciding the applicant’s issues 8-17. Relief is not warranted.

The applicant’s 18 th issue states: “I was only twenty years old when this happened and I relied on those in positions of power over me, officers and high enlisted, to guide me in the right direction. Instead, I was lied to or mislead, and then, when I was no longer in a position to defend myself, I was stabbed in the back by the people whom I was trained to trust.” The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.




Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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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