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NAVY | DRB | 2000_Navy | ND00-00044
Original file (ND00-00044.rtf) Auto-classification: Denied


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

ex-RMSA, USN
Docket No. ND00-00044

Applicant’s Request
The application for discharge review, received 991018, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed to issues. 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 000713. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge from the United States Navy was inequitable because it was based on one isolated incident in 30 months of service with no other adverse action.

2. Even though I acknowledged the crimes of which I was charged, I tried explaining that a joke had been played on me; which as a matter of fact, wasn't taken into consideration.

3. Recognizing that I did make a subconscious decision, I do indeed believe that my punishment was extremely severe.


 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)     960112 - 960623  COG

 Period of Service Under Review :
Date of Enlistment: 960624               Date of Discharge: 990103

 Length of Service (years, months, days):

         Active: 02 06 11
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, NUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

980925:  Voluntary statement from Applicant. Applicant admits to smoking marijuana at a friend’s house. Applicant admits asking ABH3 K_ to provide a urine sample to substitute for the applicant’s sample, because she had smoked marijuana and didn’t want to get caught.
981013:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: marijuana on 22Sep98, violation of UCMJ Article 134: Soliciting another to commit an offense on 25Sep98.
         Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSA. No indication of appeal in the record.
981118:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.
981119:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.
981211:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use). Commanding officer’s comments (verbatim): In a written statement (applicant) confessed to smoking a marijuana joint when a friend offered it to her at a party she attended. She also admitted to trying to coerce the urinalysis observer, ABH3 K_, to provide a sample for her during a random urinalysis screening two days later. The results of the urinalysis, received by this command on 28 September 1998, were negative. On 8 October 1998, RMSA (applicant) appeared at Executive Officer's Inquiry (XOI) and pled guilty to the aforementioned charges. However, at a nonjudicial punishment hearing held on 13 October 1998, she pled "not guilty" to wrongful use of a controlled substance. She gave testimony that prior to Captain's Mast, her friend remarked the joint she was given was not really marijuana. Furthermore, RMSA (applicant) claimed to not know what she had smoked. Upon a full review of the facts presented" it was clear RMSA (applicant) had the intent to smoke marijuana notwithstanding the negative result of her urinalysis. Based on her previous admissions, and the preponderance of the evidence submitted, RMSA (applicant) was found guilty of the offenses under the Code as charged.
         RMSA (applicant) was aware of the Navy's Policy on the use of controlled substances. Such behavior is considered to be a significant departure from the minimum standards of conduct expected of all members of the naval service. RMSA (applicant) has no potential for continued naval service and I strongly recommend her immediate separation from the naval service with an Other Than Honorable characterization of service.
981218:  COMPHIBGRU THREE 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 990103 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 states her discharge was inequitable because it was based on one isolated incident in 30 months of service, with no other adverse action. Drug abuse requires mandatory processing for separation regardless of an individual’s time in service or the number of offenses in his/her record. The applicant was properly processed for separation, based on her admitted use of marijuana and attempt to solicit another to commit an offense of the UCMJ. The discharge was proper and equitable. Relief denied.

In the applicant‘s issue 2, the Board determined this issue is without merit. The applicant claims a joke had been played on her and that fact was not taken into account. The basis of the applicant’s discharge is, that she admitted smoking marijuana or what she believed was marijuana and attempted to solicit another military member to violate the UCMJ by providing a substitute urine sample. This is a demonstration of total disregard for the rules and regulations that govern the actions of military members. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant states her punishment was extremely severe. Violation of UCMJ, Article 112A is a court-martial offense, which allows for a punitive discharge, if adjudged at a court-martial hearing. The applicant did not go to court martial and did not receive a punitive discharge. The discharge was proper and equitable. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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