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NAVY | DRB | 1999_Navy | ND99-01127
Original file (ND99-01127.rtf) Auto-classification: Denied


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

ex-AKAA, USN
Docket No. ND99-01127

Applicant’s Request
The application for discharge review, received 990825, requested that the characterization of service on the discharge be changed to 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 000512. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity, but no impropriety in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

The NDRB did note an administrative error on the original DD Form 214. Block 29, Dates of Time Lost During This Period should read: “23Sep96 to 18Oct96” vice “None”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. On the day my Captain's Mast was held, my Commanding Officer promised me a general discharge under honorable conditions due to my cooperation in the whistleblower program set forth by the Navy. On my release date my DD 214 stated that I had an "OTH" discharge. This is not what I was promised and I was unable to contest the discharge because my Commanding Officer was away at the time and would not return for several weeks. Commanding Officer of Stike Fighter Squadron 136: Cdr C_ E_ E_ Legal Officer of Strike Fighter Squadron 136: LTJG R_

 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: None
         Inactive: USNR (DEP)     940426 - 940717  COG

 Period of Service Under Review :
Date of Enlistment: 940718               Date of Discharge: 970909

 Length of Service (years, months, days):

         Active: 03 01 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, AFSM, SSDR

 Days of Unauthorized Absence: 25

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

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

 Chronological Listing of Significant Service Events :

961024:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 23 September to 18 October 1996 (25 days).
         Award: Correctional custody for 30 days. No indication of appeal in the record.
970103:  NAVHOSP, Jacksonville: A: (1) Adjustment disorder with depressed mood, (2) Deferred, (3) Tension headaches.
970106:  Applicant admitted to Naval Hospital, Jacksonville with admission diagnosis of adjustment disorder.

970107:  Applicant discharged from hospital with discharge diagnosis of: (1) observation for inspected mental observation (2) Marital problem.

970402:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
Award: Forfeiture of 1/2 months pay for 2 months, restriction and extra duty for 45 days, reduction to AKAA. Restriction suspended for 45 days. No indication of appeal in the record.
??0424:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty, unit sweep urinalysis 970410. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital [Date partially unreadable.]

970428:  Medical evaluation for drug abuse found the applicant not to be physically or psychologically dependent on drugs/alcohol. Additional comments: ETOH rare use, drugs - denies.

970509:  NAVDRUGLAB, Jacksonville (Extracted from Administrative Board Procedure Letter.) No further information found.
970515:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO's NJP 2 Apr 97 and NAVDRUGLAB JACKSONVILLE msg 090708Z May 97 and misconduct due to a pattern of misconduct.
970515:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
970515:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): Airman Apprentice (applicant) was aware of the Navy's Zero Tolerance drug policy. His use of illegal narcotics precludes further useful service to the U.S. Navy. This was a conscious violation of the UCMJ. However, Airman Apprentice (applicant) has provided this command and the Navy with invaluable information which has greatly facilitated our efforts to combat drug use within the Navy. He has agreed to testify against two accused drug dealers in upcoming court martial proceedings. Therefore, I recommend that he receive a General Discharge under Honorable Conditions from the naval service.

970904:  COMNAVAIRLANT Norfolk, VA 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 970909 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 the applicant’s issue 1, the Board found that the applicant may have interpreted the CO’s recommendation of a General discharge as a promise, and therefore waived his rights accordingly. Although the CO was not the final separation authority and the applicant had 25 days of unauthorized absence in his enlistment, the Board found that there was enough evidence to warrant an upgrade to the applicant’s discharge to general (under honorable conditions). This evidence includes the fact that the applicant’s discharge was delayed so he could appear as a witness at a general court martial and the CO’s comments recommending a general discharge based on the applicant’s assistance with these efforts. Relief is therefore granted to an upgrade in the applicant’s characterization to GENERAL (UNDER HONORABLE CONDITIONS).

 Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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