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NAVY | DRB | 2002_Navy | ND02-00103
Original file (ND02-00103.rtf) Auto-classification: Denied


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


ex-HA, USNR
Docket No. ND02-00103

Applicant’s Request
The application for discharge review, received 011017, 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 020715. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the in the discharge action but the characterization of the applicant’s service is incorrect. Applicant's characterization of service should have been "type warranted by service record" which should have been a characterization of "Under Honorable Conditions (General)" and not "Entry Level Separation". The Board’s vote was unanimous that the character of the discharge does not warrant "honorable", but the character of discharge shall be corrected to: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.
The NDRB did note an administrative error on the original DD Form 214. Block 24, Character of Service, should read: “UNDER HONORABLE CONDITIONS (GENERAL)” vice “ENTRY LEVEL SEPARATION”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I joined the US Navy Reserve in 86, Nov 19. Hospital Corpsman. Great Lakes, IL. Then field medic in CA. My grades were great, I was even an Honor Guard for the flag.
 The schooling took so long that when I got back home I lost my fiance and my apartment. The only thing I had was the reserves and that wasn't going to help. I asked my CO and he said the only way back to full duty is to miss 3 consecutive weekends of duty. So I did but unfortunately staying here and there until I was activated to full duty, I smoked marijuana. And soon after being activated and receiving orders to report to a Marine Corps amphibious unit I popped on the piss test. Without any trial nor second chance, no counseling nothing just discharged. In a military who accepts everyone today, I find it unfair and hard to accept my discharge for that one mistake without a hearing or a second chance. Even my DD 214 shows nothing of my naval record except for the conditions of my discharge. Which would have someone interpret it as if all I did in the Navy was smoke pot.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Two pages from applicant's service record (2 copies)
 God Bless America/United We Stand banner

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: 861119               Date of Discharge: 880420
Length of Service (years, months, days):

          Active: 00 09 00
          Inactive: 00 08 01

 Age at Entry: 20                          Years Contracted: 8
Education Level: 12                        AFQT: 73

 Highest Rate: HA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                           Behavior: 3.00 (1)                OTA: NOB
Military Decorations: None

 Unit/Campaign/Service Awards: None
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

ENTRY LEVEL SEPARATION/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

861201:  Applicant reported for initial tour of active duty for training.
861204:  Applicant briefed on Navy's policy on drug and alcohol abuse.
870703:  Applicant released from initial tour of active duty for training with an Honorable discharge by reason of completion of required active service (USNR) IADT.
880223:  Applicant involuntarily ordered to active duty.

 880307:  NAVDRUGLAB, Great Lakes, IL reported applicant's urine sample, received 880226, tested positive for THC.
880310:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

880324:  NJP for violation of UCMJ, Article 91: Disrespectful in language, violation of UCMJ, Article 92: Having knowledge of a lawful order, failure to obey the same.
         Award: Forfeiture of $150 per month for 2 months, restriction for 14 days, extra duty for 7 days, oral reprimand. No indication of appeal in the record.
880330:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to drug abuse as evidenced by positive accession urinalysis as confirmed by NAVDRUGLAB, Great Lake, IL 070832Z Mar 88 for marijuana.
880330:  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.
880413:  Commanding Officer recommended type warranted by service record discharge by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: as evidenced by enclosure (5), subject member is guilty of misconduct due to drug abuse. Member had been involuntarily ordered back to active duty due to unsatisfactory naval service participation. As evidenced by the aforementioned enclosures it is clear that subject named member has insufficient potential for future useful service. Separation from the naval service with a Type Warranted by Service Record discharge is hereby authorized.
880421:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Service directed urinalysis 880310. DAPA and physician found applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: member tested positive during accession pipeline urinalysis and separated (NAVET).
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880420 with an entry level separation 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), but the characterization of service "Entry Level Separation" was improper due to the length of service (more than 180 days) and the correct characterization of service based on the service record is "Under Honorable Conditions (General). Correction will be issued.
Issue 1. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. There is no inequity in the fact that the applicant was not given a second chance. On 880330, the applicant was 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. The applicant did not object to his separation at that time and due to the reason for discharge (drug use), does not rate an honorable discharge. Relief denied.
The applicant’s corrected discharge characterization (Under Honorable Conditions - General) accurately reflects his service to his country. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice is evident 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. 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. 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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