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NAVY | DRB | 2001_Navy | ND01-00205
Original file (ND01-00205.rtf) Auto-classification: Denied


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

ex-AEAN, USN
Docket No. ND01-00205

Applicant’s Request
The application for discharge review, received 001207, 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 listed Vocational Rehabilitation as the representative on the DD Form 293. Subsequent to the application, the applicant changed representation to the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010601. 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. (Equity Issue) His violations of the UCMJ notwithstanding, this former member avers that his overall service record warrants separation under honorable conditions.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant dated February 7, 2001
Character/job reference dated January 30, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     820830 - 821123  COG

 Period of Service Under Review :
Date of Enlistment: 821124               Date of Discharge: 860314

 Length of Service (years, months, days):

         Active: 03 03 21
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 66

 Highest Rate: AEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.64 (5)    Behavior: 3.65 (5)                OTA: 3.62

 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 :

850211:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample received 850130, tested positive for marijuana.
850221:  Substance Abuse Evaluation: Marijuana abuse. Alcohol abuse. Recommend applicant attend NASAPP.
850307:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Reduction to AEAA. No indication of appeal in the record.
850307:  Retention Warning: Advised of deficiency (Misconduct due to drug abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

850312:  Applicant informed evaluated as a drug or alcohol abuser and placed in rehabilitation.

860127:  Applicant notified he is considered a drug abuse rehabilitation failure as evidenced by positive urinalysis test for THC.

 860205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and drug rehabilitation failure.
860205:          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.
860206:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and drug rehabilitation failure.

860221:  Medical evaluation for drug abuse found the applicant to be an infrequent drug abuser, not drug dependent.

860308:  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 860314 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: “(Equity Issue) His violations of the UCMJ notwithstanding, this former member avers that his overall service record warrants separation under honorable conditions.” The NDRB found the negative aspects of the applicant’s service outweighed his positive contributions. Relief is not warranted.

The applicant’s second issue states: “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.” 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 applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.
















Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective
16 Dec 85 until 05 Oct 86, 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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