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NAVY | DRB | 1999_Navy | ND99-01146
Original file (ND99-01146.rtf) Auto-classification: Denied


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

ex-QMSR, USN
Docket No. ND99-01146

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 000427. 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. I was given an Adimin/under o.t.h. conditions, due to an isolated drug use/violation during my tenure for the past 10 years. I have been an officer in the Merchant Marine and subjected to routine substance abuse testing which I have never tested positive. If possible I would like my discharge conditions upgraded to Honorable. 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: None
         Inactive: USNR (DEP)     870804 - 871108  COG

 Period of Service Under Review :
Date of Enlistment: 871109               Date of Discharge: 890420

 Length of Service (years, months, days):

         Active: 01 05 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 91

 Highest Rate: QMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (2)    Behavior: 2.70 (2)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: UNKNOWN

 Days of Unauthorized Absence: UNKNOWN

 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 :

880919:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine on 23Aug88.
         Award: Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days, reduction to QMSR. No indication of appeal in the record.
880920:  Retention Warning: Advised of deficiency (Wrongful use of controlled substance, to wit: cocaine on 23Aug88.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880927:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty. Unit sweep urinalysis 13Aug88. DAPA and physician found applicant not dependent and recommended Level I treatment. Commanding officer recommended retention and Level I treatment.

890330:  Applicant unauthorized absence 0650-0840, 30Mar89.

890405:  Applicant to unauthorized absence 0650-0745, 5Apr89.

890406:  Drug and Alcohol Abuse Report: Polydrug abuse, 1-3 times per month, ashore off duty. Self referral/disclosure 22Mar89. CAAC found applicant not dependent and recommended separation not via VA hospital. Commanding Officer recommended separation not via VA hospital.

890406:  Medical evaluation for drug dependency. Drug dependency not determined.

890406:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
890406:          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.
890406:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): In view of QMSR (applicant's) stated intention to continue use of drugs as evidenced by recent CAAC, and medial officer's evaluation SNM is not recommend for further service. 1. QMSR (applicant) has refused to participate in any drug rehab program. He has no potential for future productive service. IAW ref a through c it is recommended for further service. With the characterization of discharge being other than honorable.

890411:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890420:  Applicant offered VA treatment for a minimum of 30 days prior to discharge. Applicant does not elect VA treatment prior to discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890420 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, he implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. 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.

The applicant submitted no documentation concerning his post-service conduct.
 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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