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NAVY | DRB | 2001_Navy | ND01-00711
Original file (ND01-00711.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND01-00711

Applicant’s Request
The application for discharge review, received 010430, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127. 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. (Equity Issue) This former member avers that he was unjustly discharged because the findings of his ADB were prejudiced due the fact that his charges had originally been referred to SPCM. The fact is that he was never convicted of any violations at SPCM and had his ADB not been biased he would not have been there. On this basis, he petitions the Board's relief.

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 this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Letter from LT Y_, NAS LEGAL OCEANA signed 4 Jan 00, Instructions for Disposition of Evidence ICO T_ W_ (Applicant)
CO, NAS Oceana letter to CI, Trial Service Office East, dtd 15 Oct 99 dismissing all charges
NAVDRUGLAB Jacksonville, FL msg 302020Z JUL 99 reflect Negative for Applicant
7 Potential Character Witness Questionnaire
Statement from Applicant's roommate (AG3 R_)
Applicant's Letter of Explanation (7 pages)
Partial administrative discharge package (1 page - Commanding Officer's comments)
Department of Navy Incident/Complaint Report
Charge Sheet (2 pages)
53 service record pages including Administrative Discharge Package

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     961214 - 970223  COG

 Period of Service Under Review :
Date of Enlistment: 970224               Date of Discharge: 000403

 Length of Service (years, months, days):

         Active: 03 01 10 (Doesn't exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 2.33 (3)                OTA: 2.7

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, NUC, Navy "E" Ribbon, SSDR

 Days of Unauthorized Absence: 72

 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 :

980611:  Civil Conviction: General District Court (Traffic Division) Virginia Beach, VA, for DUI and Suspended operator's license.
         Sentence: (1) $450 fine, court costs, 60 days jail (suspended), operator's license suspended for 12 months, ordered to attend VASAP and one year unsupervised probation. (2) Nolle prosequi.
980913:  Unauthorized absence from USS GEORGE WASHINGTON this date.

981005:  Surrendered onboard USS GEORGE WASHINGTON (22 days).

981101:  Unauthorized absence from USS GEORGE WASHINGTON this date.

981105:  Surrendered onboard USS GEORGE WASHINGTON (4 days).

981110:  Unauthorized absence from USS GEORGE WASHINGTON this date.

981204:  Surrendered onboard USS GEORGE WASHINGTON (24 days).

 990121:  Summary Court-Martial
 Charge I: violation of UCMJ, Article 86 (3 Specs): UA from unit from 98SEP13 to 98OCT05, from 98NOV01 to 98NOV05, and 98NOV10 to 98DEC04.
Finding: to Charge I and specifications 1,2,3 thereunder, guilty.
Sentence: 45 days hard labor without confinement and reduction to E-1. CA 000204: Sentence approved and ordered executed.
Member elected to voluntarily, knowingly, and intelligently waive his right to confer with counsel and was not represented by counsel.
990717:  Incident/Complaint Report - Possession of a controlled substance at Building 0-22, Naval Station, Norfolk, VA, misdemeanor and military offense.

990717:  Applicant consent to provide sample of urine due to suspected use of controlled substance.
991009:  Report of Apprehension/Custody & Disposition: Applicant apprehended by MA at 1AA Galley, 1730, for disorderly conduct and failure to obey order of MA.
991014:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

991029:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
991216:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse and commission of serious offense. By a vote of 2 to 1, the Board recommends retention for the commission of a serious offense. By a vote of 3 to 0, the Board recommends separation for drug abuse. By a vote of 3 to 0, the Board recommends an Other Than Honorable Conditions.

000327:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of serious offense. Commanding officer’s comments (verbatim): "On 17 July 1999, Naval Station Norfolk Base Police received a phone call about a possible narcotics violation. They followed up on the lead and came into contact with Airman W_ (Applicant). Upon further investigation, Petty Officer C_ learned that a vehicle belonging to Airman P_ was involved. Security then initiated a pat down of Airman W_ (Applicant) and found a large sum of money and two bottle lids with a green leafy substance which was suspected to be marijuana. The Master-At-Arms took the evidence and kept Airman W_ (Applicant) in custody until the search of the vehicle was completed. During the search of Airman P_'s vehicle, security observed a green leafy substance in the vehicle which was suspected to be marijuana. Military Working Dog, B_, arrived and a second search yielded two positive responses. Security conducted a field test of the green leafy substance that tested positive for marijuana. The Master-At-Arms were directed by Detective J_ to return Airman W_ (Applicant)'s property to him and release him. Airman W_ (Applicant) then flushed the evidence down the toilet. During a command directed narcotics sweep of Airman W_ (Applicant)'s barracks room, Military Working Dog, B_, alerted on money that was taken from Airman W_ (Applicant)'s pocket prior to the search. He also alerted on a nightstand here a green leafy substance was found. All were used in a field test, which tested positive for marijuana. Airman W_ (Applicant) was placed in Pretrial Confinement pending a special Courts-Martial for drug possession with intent. After learning all the evidence was gone, the Government dismissed the charges without prejudice, released Airman W_ (Applicant) from the brig and forwarded the case to an Administrative Board. He was served administrative paperwork for Articles 1910-142, (commission of a serious offense) and 1910-146 (drug abuse). He elected his right to an Administrative Board. The Board found misconduct for both offenses and recommended an Other Than Honorable Discharge for the drug abuse. Airman W_ (Applicant) withdrew his counsel's request and asked to be processed immediately. He was placed on administration separation leave on 6 January 2000. I strongly recommend an Other Than Honorable Discharge."

 000330:  GCMCA (ComNavReg, Mid-Lant, Norfolk, VA) directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Additionally, directed Level III Rehab Treatment prior to separation if drug/alcohol dependent.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000403 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) This former member avers that he was unjustly discharged because the findings of his ADB were prejudiced due the fact that his charges had originally been referred to SPCM. The fact is that he was never convicted of any violations at SPCM and had his ADB not been biased he would not have been there. On this basis, he petitions the Board's relief.” The NDRB found no impropriety or inequity in the applicant’s discharge. There is no evidence in the record supporting the allegation that the Administrative Board was prejudiced by prior charges. Based on the preponderance of evidence the Administrative Board recommended the applicant be separated due to his misconduct, drug abuse. The Commanding Officer concurred and the GCMCA directed the discharge. Relief is denied.

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 this 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 he is living a life absent of illegal drug use, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant remains 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, 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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