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NAVY | DRB | 2000_Navy | ND00-00660
Original file (ND00-00660.rtf) Auto-classification: Denied


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


ex-SHSN, USN
Docket No. ND00-00660

Applicant’s Request
The application for discharge review, received 000425, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the traveling panel closest to Dallas, Texas. The applicant did not list any representative on the DD Form 293. The applicant failed to respond by the deadline date to a letter requiring the applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010209. After a thorough review of the records, 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 would greatly appreciate if the board upgrade my discharge from Other Than Honorable-to-Honorable. The circumstances that got me discharged were born out of a personal vendetta with others on the ship. My discharge reason says Drug Abuse, but I wasn't using drugs anymore. I was on probation and served my restriction time. I was clean, so someone found a weapon on my bunk while I was on liberty. Please!! if you could, look into this, open it up, and I respectfully request if possible to upgrade to Honorable.

The block on the DD Form 293 was marked stating "I have listed additional issues as an attachment to this application. There is nothing attached with the application.

 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)     810327 - 810719  COG
Period of Service Under Review :
Date of Enlistment: 810720               Date of Discharge: 850509

 Length of Service (years, months, days):
         Active: 03 09 20
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 36
Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.92 (5)    Behavior: 2.63 (6)                OTA: 3.18

 Military Decorations: None
Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 17

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 :

820625:  Retention Warning: Advised of deficiency (Further misconduct pertaining to drugs.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

820705:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
          Specification: Unauthorized absence 0745, 19May82 to 1315, 5Jun82 (17 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
          Specification: Missed ship's movement on 3Jul82.
          Charge III: violation of the UCMJ, Article 92 (2 specs):
         Specification 1: Violate lawful general regulation, to wit: Art 1151, U.S. NAVREGS, dated 73Feb26, by wrongfully possessing 2.8 grams of marijuana on 17Mar82.
          Specification 2: Violate lawful general regulation, to wit: Art 1151, U.S. NAVREGS, dated 73Feb26, by wrongfully using marijuana on 17May82.
          Finding: to Charge I, II and III and the specifications thereunder, guilty.
         Sentence: Forfeiture of $367.00, restriction for 60 days.
          CA action 820709: Sentence approved and ordered executed.
820827:  NJP for violation of UCMJ, Article 86: Unauthorized absence from restricted men's muster on 0615, 17Jul82, 0615, 22Jul82, 1245, 26Jul82.
         Award: Forfeiture of $50 per month for 1 month, extra duty for 10 days. No indication of appeal in the record.
821023:  Retention Warning: Advised of deficiency (Drug abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

831112:  DRUG LAB Mead Com Puehem Inc Triangle Park NC, reported applicant’s urine sample, received 831104, tested positive for cannabinoids.

 831121:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order by the commanding officer, violation of UCMJ, Article 134: Wrongfully use some quantity of marijuana.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to SHSA. No indication of appeal in the record.
831123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis test.
831219:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
840209:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. The discharge to be suspended for 12 months.
840425:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): On 6 November 1982, SHSA (applicant) appeared before a Summary Court Martial for two (2) specifications of Violation of Article 92 of the Uniform Code of Military Justice: Specification (1): Wrongful possession of 2.8 grams more or less, of marijuana onboard Naval Station, Mayport, Florida. Specification (2): Wrongful use of marijuana onboard Naval Station, Mayport, Florida. A page 13 entry signed by SHSA (applicant) on 23 October 1982 warned him that further misconduct due to drug abuse could result in an administrative discharge under other than honorable conditions. On 24 October 1983, a random screening of YELLOWSTONE crewmembers was held. SHSA (applicant) submitted a sample which was not urine. A subsequent sample submitted by SHSA (applicant) tested positive for THC. His performance in rate and appearance is average. He shows potential for useful service in the future. An evaluation of SHSA (applicant) by the Command's Substance Abuse Counselor concludes that SHSA (applicant) is not drug dependent. I therefore concur in the Administrative Board's recommendations that SHSA (applicant) be discharged from the Naval Service by reason of misconduct due to drug abuse with an Other Than Honorable Discharge and that the discharge be suspended for twelve months .
840511:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). CNMPC requested Commanding Officer advise applicant that he is being placed in a probationary status for 12 months from date of message.
850502:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful general regulation, to wit: USS YELLOWSTONEINST 5522.2A, by wrongfully having dangerous weapons (knives) onboard ship, violation of UCMJ, Article 121: Stealing.
         Award: Forfeiture of $396 per month for 1 month, restriction for 30 days. No indication of appeal in the record.
850511:  USS YELLOWSTONE: Due to applicant's continued misconduct during the period of probation, applicant was discharged as authorized by COMPNAVMILPERSMAN message of 11May84.
PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 850509 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, 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, the Board found that t o permit relief, an error or injustice must have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.
Pertinent Regulation/Law (at time of discharge)
A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/84, effective
17 Sep 84 until 15 Dec 85, 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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