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NAVY | DRB | 2000_Navy | ND00-00456
Original file (ND00-00456.rtf) Auto-classification: Denied


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

ex-AMSAR, USN
Docket No. ND00-00456

Applicant’s Request
The application for discharge review, received 000228, 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 000918. 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: GENERAL (UNDER HONORABLE CONDITIONS)/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I feel my discharge was inequitable because it was based on one isolated incident in 10 months of service.

 Documentation
Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     860808 - 861207  COG

 Period of Service Under Review :
Date of Enlistment: 861208               Date of Discharge: 871029

 Length of Service (years, months, days):

         Active: 00 10 22 (Doesn't exclude lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 20                        AFQT: 83

 Highest Rate: AMSAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)     Behavior: 1.0 (1)                 OTA: 3.0

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 20

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

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

 Chronological Listing of Significant Service Events :

860807:  Acknowledged understanding of the Navy Alcohol and Abuse Policy.

860808:  Pre-service waiver for possession of marijuana granted.

 870427:  NJP for violation of UCMJ, Article 92: failure to obey a lawful order/regulation, to wit: member violated a lawful written order by discharging a fire extinguisher, which was unauthorized, on or about 87APR14.
         Award: Forfeiture of $153 per month for 1 month, extra duty for 14 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
870427:  Retention Warning: Advised of deficiency (violation of UCMJ, Article 92: violated a lawful written order by discharging a fire extinguisher, when not authorized, on 14 Apr 87), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870927:  Suspended reduction in rate awarded at CO's NJP of 87APR27 vacated due to continued misconduct.
870929:  NJP for violation of UCMJ, Article 86: unauthorized absence from his unit on 0030 87SEP02 until on or about 0325, 87SEP22.
Award: Forfeiture of $369 per month for 1 month. No indication of appeal in the record.
870929:  Applicant's Statement: "While I was on unauthorized absence, I attended a party in Los Angeles, California on the night of 19 September 1987. I smoked some marijuana that was being passed around that night.

870929:  Informal Report Chit: On report for violation of UCMJ, Article 112a (wrongful use of controlled substance - marijuana). While AMSAR (Applicant) was in an unauthorized absence status he made a statement to fact he smoked marijuana on 19 Sep 1987 at a party in Los Angeles, CA.

871001:  NAVDRUGLAB San Diego, CA: Urine sample submitted on 25 Sep 87, received on 25 Sep 87, tested positive for marijuana.

871001:  NJP for violation of UCMJ, Article 112a: wrongful us of marijuana, a controlled substance, on or about 19 SEP 97.
         Award: Forfeiture of $329 per month for 1 month. No indication of appeal in the record.

871014:  DAAR: Positive for marijuana as result of urinalysis testing due to applicant's disclosure on 19 SEP 97, CAAC determined dependency, recommend separation from service via VA hospital.

871007:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse as evidenced by Commanding Officer's Non-Judicial Punishment.
871007:  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. Applicant did not object to the separation.
871008:  GCMCA (HELSUPPRON THREE) directed applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "AMSAR (Applicant) is a average worker whose performance has been adversely affected by unauthorized absence and drug abuse. On 12 September 1987 he surrendered following a twenty day unauthorized absence and was screened for drug abuse. Prior to Captain's Mast proceedings held on 01 October 1987 for wrongful use of drugs AMSAR (Applicant) signed a written statement admitting use of marijuana. Based on ASMAR (Applicant)'s statement and report of urine sample (positive THC) he appeared at Captain's Mast 01 October 1987 and was recommended for separation processing. Recommend AMSAR (Applicant) be separated with general discharge and RE-4 reenlistment code."

871105:  HELSUPPRON THREE advised CNMPC that applicant was discharge 29 Oct 87 for misconduct drug abuse based on command directed urinalysis. Further advised that none of the evidence of drug abuse may be used to characterize service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 871029 with a General (Under 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).

 The applicant’s issue states: “I feel my discharge was inequitable because it was based on one isolated incident in 10 months of service.” The NDRB did not find that the applicant was discharged for an isolated incident. After review of the applicant’s service record the Board found the applicant’s ten months active service was marred by three separate NJP’s. The offenses the applicant was found guilty of committing were: Violation of UCMJ Article 92- Failure to Obey a Lawful Order, Violation of UCMJ Article 86- Unauthorized Absence (20 Days), and Violation of UCMJ Article 112a- Wrongful Use of Controlled Substance (marijuana). The Board found that considering the applicant’s documented misconduct over his ten months of active service the discharge was proper and equitable. Relief is not warranted.

 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 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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