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NAVY | DRB | 2001_Navy | ND01-00511
Original file (ND01-00511.rtf) Auto-classification: Denied


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

ex-ABEAA, USN
Docket No. ND01-00511

Applicant’s Request
The application for discharge review, received 010312, 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 010802. 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 (verbatim)

1. My discharge was unjust because I was innocent of the charges against me.
My discharge was unfair because I was never given the opportunity to talk to a lawyer (until prior to separation). I was presumed guilty from the get go. My discharge was unfair because I was never given the opportunity and time to prepare myself. My discharge was unfair because upon everything I requested I was denied.
My discharge was unfair because I never had a chance to prove to the navy that I was using supplements to work out and if anything that is what showed up in the urinalysis.
My discharge was unfair because the navy didn't live up to the core values they teach sailors to live by. Only I did! I will continue to fight this until justice is served.
Most of all my discharge is unfair because this is something that will stay with me all my life now.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated January 13, 2001
Copy of results of polygraph test dated May 1, 2000
Statement from applicant dated June 14, 2000
Statement from applicant dated December 17, 1999
Hand written statement from applicant
Twenty-eight pages from applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970730 - 971221  COG

 Period of Service Under Review :
Date of Enlistment: 971222               Date of Discharge: 000630

 Length of Service (years, months, days):

         Active: 02 06 09
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rate: ABEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.67

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, NER, NUC, MUC

 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 :

991216:  NAVDRUGLAB, San Diego, reports applicant's urine sample received 991208, tested positive for methamphetamine.
991217:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance the month of November, to wit: methamphetamine.
         Award: Forfeiture of $538 per month for 2 months, restriction and extra duty for 45 days, reduction to ABEAA. Appealed 991220. Appeal denied 000217.
000120:  Medical evaluation for drug abuse found the applicant does not meet the diagnostic criteria for methamphetamine abuse or dependence.

000614:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000614:  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.
000623:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

000629:  COMCARGRU THREE 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 000630 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).

 In the applicant’s issue 1, the Board found that the applicant tested positive for methamphetamines on a 991208 urinalysis. The applicant was found guilty at CO’s NJP for wrongful use of a controlled substance. Although the applicant denies he was given the opportunity to consult with a lawyer, the applicant waived his rights on 000614. No relief will be granted based on this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. 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.

 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 " 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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