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NAVY | DRB | 2001_Navy | ND01-00411
Original file (ND01-00411.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND01-00411

Applicant’s Request
The application for discharge review, received 010218, 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 011018. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I was charged in accordance with UCMJ Art 112A VIOLATION: Wrongful use of a controlled substance. However with the documents provided, there is a conflict of information. I believed from day one I was "Railroaded", wrongfully discharged. The out patient cumulative report clearly shows on 24May96 @ 0103 that the results of the initial urinalysis was negative for Benzodines, negative for Barbituates and the Opiates were awaiting Expended Results which were never documented in Nursing Notes according to Lt. (medical Corps) C_ M_ U_, MD. Dr. U_ reviewed my medication profile and history from time of admittance to discharge and there were major discrepancies. He also urged (in Doc #2) a careful review of my case prior to discharge from service for nevertheless, I was wrongfully discharged.

I am asking for a review of my discharge to upgrade my discharge status to Honorable. Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of outpatient cumulative report
Copy of chronological record of medical care
Copy of message from USS HUE CITY to BUPERS dated July 31, 1996

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930430 - 930503  COG

 Period of Service Under Review :
Date of Enlistment: 930504               Date of Discharge: 960823

 Length of Service (years, months, days):

         Active: 03 03 20
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 3.80 (1)                OTA: 3 .80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NUC, NER, NDSM, AFSM, GCM, SASM with Bronze Star, NATO

 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 3630620.

 Chronological Listing of Significant Service Events :

960725:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to HA. No indication of appeal in the record.
960731:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your nonjudicial punishment on 25 July 1996, in violation of Article 112A, UCMJ.
960731:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
960731:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960815:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960821:  Medical evaluation for drug abuse: The doctor did not consider the applicant abusive nor dependent on the use of alcohol/drugs. Extracted from medicinal page submitted by the applicant.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960823 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: “I was charged in accordance with UCMJ Art 112A VIOLATION: Wrongful use of a controlled substance. However with the documents provided, there is a conflict of information. I believed from day one I was "Railroaded", wrongfully discharged. The out patient cumulative report clearly shows on 24May96 @ 0103 that the results of the initial urinalysis was negative for Benzodines, negative for Barbituates and the Opiates were awaiting Expended Results which were never documented in Nursing Notes according to Lt. (medical Corps) C_ M_ U_, MD. Dr. U_ reviewed my medication profile and history from time of admittance to discharge and there were major discrepancies. He also urged (in Doc #2) a careful review of my case prior to discharge from service for nevertheless, I was wrongfully discharged. I am asking for a review of my discharge to upgrade my discharge status to Honorable. Thank you.” The NDRB assumed regularity in the applicant’s discharge. The charter of the NDRB is to determine if there was impropriety or inequity in the processing of the applicant’s discharge or the assignment of the discharge characterization. There is no evidence in the applicant’s service record nor did the applicant provide any evidence would sufficiently explain, overturn or mitigate his NJP for violation of Article 112a. The Board found no impropriety or inequity in the discharge. Relief is denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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. 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, is considered. The applicant did not provide any documentation of his post-service . The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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 " afls10.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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