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NAVY | DRB | 2001_Navy | ND01-00112
Original file (ND01-00112.rtf) Auto-classification: Denied


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

ex-IC3, USN
Docket No. ND01-00112

Applicant’s Request
The application for discharge review, received 001031, 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 010503. 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. To Resolve the Appeal Process to Have the Upgrading of R____ J. S_____'s Discharge be Approved. After five years of exemplary service, I was separated from the Navy with an OTH due to no fault of my own. A urinalysis test, allegedly mine, showed a positive result for marijuana. The sample could not have been mine. I have never knowingly taken drugs of any sort. I was reared in an environment of honor, high DOD clearance and am well aware of the outcome of drug abuse. Please reference the 3 page memorandum dated 28 April, 2000 and the attached enclosure 1-20 as specified in 7a and 7b above. These consist of a letter, civilian drug test results, military references and commendations in support of my plea.

2. My conduct and efficiency rating/behavior and proficiency marks were mostly pretty good.

3. I received awards and decorations.

4. My record of promotions showed I was generally a good service member.

5. I have been a good citizen since discharge.
.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant
G.I. Bill Claim
Memorandum (3 pgs)
Copy of DD Form 214
Copy of Birth Certificate
Copy of Social Security Card
Copy of High School Diploma
A.T.C. Drug Testing Letter
Copy of Laboratory Results Report
Copies of Service Related Documents (5)
Copy of Letter for Congratulations (Distinguished Military Graduate)
Copy of Good Conduct Award
Letters of Recommendation (3)
Resume (2pgs)
Copy of Retention Warning
Copy of CO's NJP

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     940721 - 941226  COG

 Period of Service Under Review :
Date of Enlistment: 941227               Date of Discharge: 000124

 Length of Service (years, months, days):

         Active: 05 00 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 99

 Highest Rate: IC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (8)    Behavior: 3.00 (8)                OTA: 3.27

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR, NAVY"E"RIBBON, MUC, 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 :

991203:  NAVDRUGLAB SAN DIEGO CA urinalysis report indicates applicant tested positive for THC.
991215:  NJP for violation of UCMJ, Article 112A: Unlawful use of a controlled substance.
         Award: Forfeiture of $819.00 per month for 2 months, 45 days extra duty and restriction to USS FIFE, reduction to E-4. No indication of appeal in the record.
991215:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.
991215:  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 submit a statement to the Administrative Board or the Separation Authority in lieu of a board.
991222:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

000119:  Commander, Naval Surface Group Pacific Northwest authorized applicant 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 000124 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 first issue states: “To Resolve the Appeal Process to Have the Upgrading of R____ J. S_____'s Discharge be Approved. After five years of exemplary service, I was separated from the Navy with an OTH due to no fault of my own. A urinalysis test, allegedly mine, showed a positive result for marijuana. The sample could not have been mine. I have never knowingly taken drugs of any sort. I was reared in an environment of honor, high DOD clearance and am well aware of the outcome of drug abuse. Please reference the 3 page memorandum dated 28 April, 2000 and the attached enclosure 1-20 as specified in 7a and 7b above. These consist of a letter, civilian drug test results, military references and commendations in support of my plea.” The NDRB found no impropriety or inequity in the applicant’s discharge. The applicant’s service record and his supporting documentation did not sufficiently mitigate the applicant’s misconduct. While the applicant takes issue with his urinalysis, the Board found no evidence in the record to support this issue. The Board determined the applicant’s post service drug test did not exonerate the finding of guilt at NJP. Relief is denied.

The applicant’s second issue states: “My conduct and efficiency rating/behavior and proficiency marks were mostly pretty good.” The NDRB found the negative aspects of the applicant’s service outweighed the positive. The Under Other Than Honorable discharge accurately characterized the applicant’s service. Relief is denied.

The applicant’s third issue states: “I received awards and decorations.” The Board did not find the applicant’s awards and decorations significant enough to warrant a change in discharge. Relief is denied.

The applicant’s fourth issue states: “My record of promotions showed I was generally a good service member.” The Board found the applicant’s misconduct outweighed his positive contributions. The Under Other Than Honorable discharge accurately characterized the applicant’s service. Relief is not warranted.

 The applicant’s fifth issue states: “I have been a good citizen since discharge.” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. The Board did not find the applicant’s post service significant enough to warrant an upgrade in the discharge. 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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