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NAVY | DRB | 2001_Navy | ND01-01007
Original file (ND01-01007.rtf) Auto-classification: Denied


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


ex-AA, USN
Docket No. ND01-01007

Applicant’s Request
The application for discharge review, received 010731, 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 020221. 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: GENERAL UNDER HONORABLE CONDITIONS/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

 1. No additional information provided to support request.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
          Inactive: USNR (DEP)     890912 - 890918  COG
Period of Service Under Review :
Date of Enlistment: 890919               Date of Discharge: 910916

 Length of Service (years, months, days):
         Active: 01 11 28
          Inactive: None
Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 33
Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (2)    Behavior: 2.80 (2)                OTA: 2.90

 Military Decorations: None
Unit/Campaign/Service Awards: SOSR, NDSM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL UNDER HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

910104:  Retention Warning: Advised of deficiency (Minor disciplinary infractions/pattern of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910130:  NJP for violation of UCMJ, Article 86: (2 Specs), Unauthorized absence, 901022 and 901025; violation of UCMJ, Article 92: Failure to obey a lawful written.
         Award: Forfeiture of $422.55 pay per month for 2 months, extra duty for 45 days, reduction to E-1 (suspended for 3 months). No indication of appeal in the record.

 910519:  Applicant's Sworn Statement to Naval Investigative Service.
910605:  Alcohol Evaluation indicates applicant appears to be a drug abuser, but does not exhibit signs or symptoms of psychological dependence.
910611:  Medical evaluation for drug abuse found no dependency, either physical or psychological.
910708:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
910710:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910710:  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, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge general under honorable conditions.

910820:  Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments: Inclusive evidence supports an administrative discharge for drug abuse. AA R____ D. E____ has been counseled about the Navy's "zero tolerance" policy toward drug abuse. While his violation of this policy is inexcusable , AA E____ did, to his credit, assist the Naval Investigative Service in an ongoing investigation, and was able to help them obtain information they otherwise would not have been able to obtain. Based on the recommendation of the administrative board and a review of his service record, I find that he exhibits no potential for further service. He should immediately be separated from the U.S. Navy under General under Honorable conditions.
910828:  BUPERS directed the applicant's discharge general under honorable conditions by reason of misconduct due to drug abuse (use).
910905:  DAAR indicates marijuana abuse, found not dependent by medical officer, recommended for separation from service not via VA Hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910916 general under 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).
Issue 1. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.
Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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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