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NAVY | DRB | 2000_Navy | ND00-00780
Original file (ND00-00780.rtf) Auto-classification: Denied


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

ex-ENFA, USN
Docket No. ND00-00780

Applicant’s Request
The application for discharge review, received 000605, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010126. 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. Dear Sir (to whom it may concern
I (applicant) is now service the Newark Fire Department, and has been service for the past 9 years. Soon I will be up for advancement. Please consider may request for a upgrade. Thank you for your time and consideration.

 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)     841107 - 850204  COG

 Period of Service Under Review :
Date of Enlistment: 850205               Date of Discharge: 871209

 Length of Service (years, months, days):

         Active: 02 10 05
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 27

 Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 4.00 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

 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 :

850210:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 850605:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana during the period 13Ap85 to 13May85.
         Award: Forfeiture of $310 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
851025:  Substance Abuse Report: Marijuana abuse, 1 to 3 times per week, October 1976 to October 1985, ashore off duty. Urinalysis October 1985. CAAC found applicant dependent and recommended Level III. Commanding officer recommended retention and alcohol residential treatment. Comments: Age 23, TIS 4 months. NJP 6/5/85 Article 112A.
870804:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly September 1987, ashore off duty. Urinalysis September 28, 1987. Medical officer found applicant not dependent and recommended separate from service. Commanding officer recommended separation.
871103:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.
871103:  NJP for violation of UCMJ, Article 112A: Wrongful use of THC, a controlled substance.
Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to ENFA. No indication of appeal in the record.
871104:  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, 5 June 1985, violation of Article 112A, and urinalysis on 28 September 1987 local batch # 5047/07 which tested positive for TH by RIA and confirmed positive by GC/MS, by NAVDRUGLAB Jacksonville, FL. and identified by SSN.
871104:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.
871104:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

871113:  CNMPC 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 871209 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).

Issue 1. The applicant states he now serves with the Newark Fire Department and has served with them for the past 9 years. The applicant’s misconduct entailed wrongful use of illegal drugs on two occasions. He was found guilty at NJP for wrongful use of marijuana in June of 1985. Five months later, he was again found guilty at NJP of marijuana use. The applicant’s repeated use of illegal drugs demonstrated a blatant disregard for Navy rules and regulations. The Board determined the applicant’s 9-year employment history, with the Newark Fire Department, was insufficient reason to upgrade his discharge. Additionally, the applicant did not provide any proof of such employment. Relief denied.

 The following is provided for the benefit of the applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. There was no such error or injustice in this case. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to military service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the applicant to claim good character and conduct as a reason to upgrade a less than Honorable discharge. The applicant is reminded that he is eligible for a personal appearance hearing, to present his case, provided an application is received, at the NDRB, within 15 years from the date of his discharge. Documentation to support any claim of good character and conduct (post-service accomplishments) can be provided at that time. Representation at a personal appearance hearing is highly recommended but not required.

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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