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NAVY | DRB | 1999_Navy | ND99-01010
Original file (ND99-01010.rtf) Auto-classification: Denied


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

ex-ADAN, USN
Docket No. ND99-01010

Applicant’s Request
The application for discharge review, received 990721, 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 any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417. 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 (applicant) have serviced two tours in the U.S. Navy. From 79 to 82 Honorable discharged. I serviced 3 yrs 11 mos of my 2 nd tour (82 to 86). Both was sea duty. I worked hard, sometime 22 hrs straight. Deployment was hard on my family and I was loseing them. I requested shore duty many times and turndown. Before my last deployment, I knew a drug test was coming. I knew if I failed that test and had no interest of stay in. They would let me out. So I failed the test, but time the test caught up with me, I was half way though deployment and time I got discharge, I was one month short of my tour. I was young and I made a mistake. I didn't finish my military duty and my wife was finish with me. Live and learn. Could you help me out? Upgrade my 2 nd tour. Thank you


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR              790424 - 820423  HON
         Inactive: USNR            820424 - 820526  HON
                  USNR (DEP)      820527 - 820610  COG

 Period of Service Under Review :
Date of Enlistment: 820611               Date of Discharge: 860227

 Length of Service (years, months, days):

         Active: 03 08 17
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 20

 Highest Rate: AD3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (7)    Behavior: 3.46 (7)                OTA: 3.52

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

 Chronological Listing of Significant Service Events :

821117:  NJP for violation of UCMJ, Article 134: Wrongfully exposed in an indecent manner to pubic view his lower anatomy.
         Award: Forfeiture of $125 per month for 1 month, restriction for 19 days. No indication of appeal in the record.
851219:  NAVDRUGLAB, Oakland, CA reported urine sample received 851205 tested positive for THC
860118:  NJP for violation of UCMJ, Article 112A: Use of marijuana.
         Award: Forfeiture of $424 per month for 2 months, extra duty for 45 days, reduction to ADAN. No indication of appeal in the record.
860128:  Medical evaluation for drug abuse found the applicant not psychological or physically dependent on amphetamines, marijuana alcohol or anyother substance.

860122:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by NAVDRUGLAB Oakland Ca 192119Z Dec 85.
860122:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.
860129:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

860210:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

860219:  Drug and Alcohol Abuse Report: Marijuana abuse Apr80 - Dec85, 1 to 3 times per week, urinalysis Dec85, ashore off duty. Medical officer and SAC/CAAC found applicant not dependent and recommended separate from service not via VA hospital. Commanding officer recommended separate. Comments: Member has above average performance with declining military bearing during the past 12 months. He is viewed as having no potential for further service. Member screened positive for THC in September 1985 following hospitalization for mental distress. NJP's 17 November 1982, Article 134, wrongfully exposing lower anatomy, 18 January 1986, Article 112(a), use of marijuana, awarded reduction in rate to E-3, forfeiture of $424.00 per month for 2 months and 45 days extra duty. Member has resisted all counseling attempts and has an extremely negative attitude towards the Navy. Member is currently being processed for discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860227 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 determined this issue is without merit. The applicant claims he failed the drug test because he wanted to get out of the Navy and that he was young and made a mistake. Youth and immaturity are no excuse for violating the UCMJ. The applicant admits to using illegal drugs for the purpose of being discharged from military service. This was a conscious and bad decision. The discharge was proper and equitable. Relief denied.

The following is provided for the applicant’s benefit. 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, 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 or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed. This applicant’s discharge was proper and equitable. Additionally, the NDRB is authorized to award clemency for post-service factors (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). The applicant did not provide enough documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements. The applicant remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective
16 Dec 85 until 05 Oct 86, 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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