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NAVY | DRB | 2001_Navy | ND01-00498
Original file (ND01-00498.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND01-00498

Applicant’s Request
The application for discharge review, received 010307, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review before a traveling panel and a documentary record discharge review. The applicant listed a V.A National Service Officer as his representative on the DD Form 293. The Naval Discharge Review Board (NDRB) conducts a record review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010907. 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. I feel that my other than honorable should be upgraded due to the fact that upon release from active duty that I was not given a trial, because the simple fact of the matter is that I was not guilty of T.H.C. in my system. I don't and do not use drugs period. I am a big fan of the USN and would not pertake in any conduct that would dishonor my country or my selfs honors.

 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: USN                        None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 850621               Date of Discharge: 880620

 Length of Service (years, months, days):

         Active: 02 00 02
         Inactive: 00 11 28

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 28

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (3)    Behavior: 2.53 (3)                OTA: 3.33

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR, BATTLE"E"RIBBON

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 :

860619:  Order to active duty for 36 months under the Active Mariner program.

 870729:  NJP for violation of UCMJ, Article 80: Attempting assault, violation of UCMJ Article 86: Unauthorized absence, violation of UCMJ Article 92: Failure to obey a lawful order; violation of UCMJ Article 113: Drinking while in a duty status; violation of UCMJ Article 123: Wrongfully make checks without sufficient funds.
         Award: Correctional Custody for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

871102:  Retention Warning: Advised of deficiency (Violation of UCMJ, Articles 80, 86, 92, 113, 123a), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880317:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance, marijuana.
Award: Forfeiture of $335.00 per month for 2 months, restriction to North Island for 60 days, reduction to E-1. No indication of appeal in the record.
880321:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by one NJP for conviction for illegal use of marijuana and misconduct due to commission of a serious offense as evidenced by one conviction for violation of UCMJ Articles 92, 113, and 123a.
880321:          Applicant advised of his rights and having elected not to consult having consulted 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.
880324:  CAAC evaluation indicates applicant is not dependent on drug or alcohol

880325:  DAAR indicates applicant is not dependent on drug or alcohol.

 880516:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order: Consuming alcoholic beverages while in a restricted status on 880514.
Award: Forfeiture of $335.00 per month for 2 months, restriction to North Island for 45 days, extra duty for 45 days, No indication of appeal in the record.
880612:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
880627:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880620 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 1 states: “I feel that my other than honorable should be upgraded due to the fact that upon release from active duty that I was not given a trial, because the simple fact of the matter is that I was not guilty of T.H.C. in my system. I don't and do not use drugs period. I am a big fan of the USN and would not pertake in any conduct that would dishonor my country or my selfs honors.” The record shows that in addition to the applicant’s NJP for violation of UCMJ Article 112a (Wrongful Use of Controlled Substance), the applicant had two additional NJP’s for misconduct in his enlistment. All three NJP’s included serious offenses, where a punitive discharge may be awarded at a Court martial conviction. There was no impropriety in the fact that the applicant received NJP rather than a trial by court martial. The Board determined the applicant was afforded all his rights in accordance with the regulations and he elected to waive his rights to an administrative discharge board. The applicant established a pattern of misconduct that demonstrated he was unwilling to conform to military standards and was unfit for further service. Relief is denied.

 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.

The applicant 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 recommended .




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 " 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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