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NAVY | DRB | 2001_Navy | ND01-00089
Original file (ND01-00089.rtf) Auto-classification: Denied


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

ex-ITSN, USN
Docket No. ND01-00089

Applicant’s Request
The application for discharge review, received 001023, 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 010329. 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 was inequitable because it was based on one isolated incident in 41 months of service with no other adverse action.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated August 20, 2000
Statement re correction to DD Form 214, Block 14 dated November 19, 2000
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960123 - 960908  COG

 Period of Service Under Review :
Date of Enlistment: 960909               Date of Discharge: 000211

 Length of Service (years, months, days):

         Active: 03 05 03
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 64

 Highest Rate: IT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (5)    Behavior: 2.60 (5)                OTA: 2.76        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), MUC (2), NER, HSM, GCM

 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 :

961112:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., failure to disclose unpaid parking ticket, 7/95, Hampton, MA. Page 13 service record entry pending outcome of appeal.

991227:  NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample received 991203, tested positive for MDMA.
991229:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: MDMA most commonly known as ecstasy, between 15Nov99 and 29Nov99.
         Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to ITSN. No indication of appeal in the record.
000113:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000113:          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.
000126:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments: On 27 December 1999, the command received a message from the Navy Drug Laboratory confirming a urine sample provided by ITSN (applicant) on 29 November 1999. He was awarded 45 days restriction; 45 days extra duties; forfeiture of $450.00 pay per month for two months; and reduction in rate to E-3. At CO's NJP, ITSN (applicant) stated someone had put the drug in his drink while visiting an establishment in Virginia Beach. He was given the opportunity to go to the Virginia Beach Police Department to verify if any other complaints have been made concerning incidents such as this. Naval Criminal Investigative Service was contacted by Captain Z_, the Executive Officer, USS NASSAU, concerning his allegations. NCIS agreed to conduct a lie detector test. ITSN (applicant) refused to take the test and did not produce any evidence proving this is a common occurrence. ITSN (applicant) was made aware of his right to request an administrative discharge board, he elected to waive that right.
         ITSN (applicant) is not mature not responsible enough to remain on active duty in the naval service. His actions are totally unacceptable. He is obviously incapable of adhering to the rules and regulations for good order and discipline required of all Sailors in the United States Navy. It is obvious from his actions he does not intend to honor his commitment.
         ITSN (applicant) has no further potential for useful naval service. I recommend approval of a discharge from the naval service with characterization of Other Than Honorable.

000202:  Commander, Amphibious Group TWO 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 000211 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).

 The applicant’s issue states: My discharge was inequitable because it was based on one isolated incident in 41 months of service with no other adverse action.” The record shows the applicant was found guilty of violation of UCMJ Article 112a, wrongful use of controlled substance. While the applicant feels his discharge is inequitable due to this incident, the Board found no inequity in the discharge. The applicant’s misconduct clearly shows a significant departure from the standards required of all men and women on active duty. Relief is denied.

 The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.























Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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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