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NAVY | DRB | 2001_Navy | ND01-01041
Original file (ND01-01041.rtf) Auto-classification: Denied


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

ex-ADAA, USNR
Docket No. ND01-01041

Applicant’s Request
The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Release form Active duty. 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 and narrative reason 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. My discharge was improper because it was based on alleged drug use. I was tested several times for drug use and I NEVER tested positive.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated July 31, 2001
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 850223               Date of Discharge: 880908

 Length of Service (years, months, days):

         Active: 02 09 06
         Inactive: 00 09 11

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 12                        AFQT: 56

 Highest Rate: ADAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.30 (2)    Behavior: 1.00 (1)                OTA: 2.90

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

851206:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 880519:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty on 1000, 5Sep87, to wit: barracks room reinspection; violation of UCMJ, Article 112A (14 specs): (1) Wrongfully use marijuana on 14May87, (2) Wrongfully use marijuana on 15May87, (3) Wrongfully use marijuana on 15May87, (4) Wrongfully use 1 tab more or less of lysergic acid diethylamide between 17 and 24May87, (5) Wrongfully use marijuana on 22May87, (6) Wrongfully use marijuana on 1Jun87, (7) Wrongfully use marijuana on 3Jun87, (8) Wrongfully use marijuana on 6Jun87, (9) Wrongfully use cocaine on 6Jun87, (10) Wrongfully use marijuana on 11Jun87, (11) Wrongfully use marijuana on 1900, 12Jun87, (12) Wrongfully use marijuana on 2130, 12Jun87, (13) Wrongfully use marijuana on 1300, 30Jun87, (14) Wrongfully use marijuana on.1600-200, 30Jun87.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to ADAA. No indication of appeal in the record.
880605:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the illegal or wrongful use or possession of a controlled substance.
880610:  Applicant advised of his rights and 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.

880613:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. Recommend Level II treatment, if retained on active duty.

880729:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): ADAA (applicant) displays absolutely no potential for further service and has shown a total lack of regard for the Navy's rules and regulations. He was taken to CO's NJP on 19 May 1988 for violation of the UCMJ, Article 112a (14 specifications). ADAA (applicant) chose NJP in lieu of trial by court-martial upon advise from his defense counsel. Results of Mast were substantiated by corroborating statements from the Naval Investigative Service. I recommend a discharge from the U.S. Navy Under Other Than Honorable conditions, not eligible for reenlistment.

880829:  CNMPC 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 880908 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).

Issue 1. The Board considered the applicant’s entire service record and the supplemental documents that he provided. The applicant’s single non-judicial punishment was for violation of UCMJ Article 86, and fourteen specifications of violating Article 112A (wrongful use of a controlled substance), for which he was discharged. The applicant states he never tested positive for illegal drug use but whether or not he tested positive for a given urinalysis does not of itself establish that the applicant was wrongfully accused and unfairly given non-judicial punishment. The applicant failed to provide any evidence to prove that the allegations against him were false. Drug abuse warranted processing for separation, normally under other than honorable conditions. No other narrative reason for separation more clearly describes the conditions surrounding his discharge. 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 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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