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NAVY | DRB | 2002_Navy | ND02-01016
Original file (ND02-01016.rtf) Auto-classification: Denied


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

ex-GSMFR, USN
Docket No. ND02-01016

Applicant’s Request
The application for discharge review, received 020712, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 030331. 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I (Applicant) feel my discharge should be upgraded on the basis that I had a drug addiction which should have been addressed but wasn't. I was discharged on my belief due to too many unclean urine samples. There was no excuse for my behavior and discipline action should have been taken and it was to the extreme. I didn't serve my country long but my intentions were to. Please consider my plea and vote with a fair mind considering all situations with a better judgement. Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880510 - 880602  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880603               Date of Discharge: 900901

 Length of Service (years, months, days):

         Active: 02 02 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 53

 Highest Rate: GSMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (1)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM

 Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880608:  Applicant briefed on Navy's policy of drug and alcohol abuse.

880609:  Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL: Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880615:  Applicant notified of being identified, through urinalysis testing, as a drug abuser. Applicant placed on drug urinalysis surveillance program and tested on a regular basis.

 880620:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Service directed urinalysis 880603. Commanding Officer recommends retention and Level I treatment. Comments: SNM tested positive for THC in the accession pipeline urinalysis.

880725:  Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL]: Advised of deficiency (4 th class swimmer qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890404:  Drug and Alcohol Abuse Interview: No dependent. Recommend Level I treatment with NADSAP.

 890412:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730 to 1430, 890324, violation of UCMJ, Article 92: Failed to obey a lawful general order by consuming an alcoholic beverage while under the age of 21 years on 890324
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days, reduction to GSMFR. Reduction suspended for 180 days. No indication of appeal in the record.

890412:  Retention Warning from Service School Command, Great Lakes, IL: Advised of deficiency (Poor military performance, without authority, absent yourself from your organization, to wit: Service School Command, Great Lakes, IL, and by wrongfully consuming an alcoholic beverage unde the age of 21 years.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890612:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890531, tested positive for cocaine and THC.

890621:  Vacate suspended reduction to GSMFR awarded at CO's NJP dated 890412 due to continued misconduct.

890621:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 890531, to wit: THC and cocaine.
         Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
890627:  Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty. Inspection urinalysis 890621. CAAC found Applicant dependent and recommended Level II treatment. Commanding Officer recommended retention and Level I treatment. Comments: Service member has been onboard one month but has not been evaluated but is emanable and eligible for retention.

890627:  Retention Warning from USS KINKAID (DD-965): Advised of deficiency (Incident 1 substandard performance due to drug abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890707:  CAAC evaluation: Applicant does not appear to be psychologically dependent on drugs and would benefit from a Level I program. CAAC recommend processing for separation.

890711:  Medical Officer Evaluation for drug dependency: Impression: No evidence of psych or physical dependency. Recommendation: Should be handled administratively.

890824:  Counseling: Advised of deficiency (substance abuse), notified of corrective actions and assistance available.

900306:  Competence for duty examination: Competent for duty. Recommend ship's medical department make arrangements for a formal psychiatric evaluation.

900306:  Psychiatric Evaluation for mild depression: A: No evidence of affective disorder, or any significant suicidal depression. P: Recommendation: Return to clinic prn.

900307:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence on 0500-0605, 900221, (2) Unauthorized absence on 0700-1500, 900303, (3) Unauthorized absence on 0700, 900304 to 0700, 900305 (1 day), (4) Unauthorized absence on 1530, 900305 to 1108, 900306.
         Award: Forfeiture of $362 per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.
900413:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 900327, tested positive for THC.

900419:  NJP for violation of UCMJ, Article 86: Failure to go or leaving place of duty on 0630, 900412, violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 1110, 900327, to wit: THC.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
900427:  Drug and Alcohol Abuse Report: Abuse 900327. DAPA and physician found Applicant dependent and recommended separation. Commanding Officer recommended separation. Comments: FR (Applicant's) past military performance has been poor. Presently he is unreliable and unproductive. Due to his poor military performance and continued drug and alcohol abuse FR (Applicant) has no potential for future naval service.

900427:  Drug and Alcohol Screening: Applicant is psychologically drug/alcohol dependent and recommended for separation and VA treatment for dependence.

900427   USS KINKAID (DD 965) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment, misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment, and misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ which can result in a punitive discharge in your current enlistment.
900502:  NJP for violation of UCMJ, Article 134: Breaking restriction on 2200, 900423, violation of UCMJ, Article 92: Failure to obey other lawful order on 900307, to wit: failing to turn in military identification card.
         Award: Forfeiture of $362 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
900502:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
900522:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, drug abuse, and commission of a serious, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

900524:  NJP for violation of UCMJ, Article 86: Failure to go or leaving place of duty on 900512.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
900525:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment, misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment, and misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ which can result in a punitive discharge in your current enlistment.

900606:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900621:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 900615.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
900721:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 900707.
         Award: Confinement on bread and water for 3 days. Suspended for 30 days. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 900901 under other than honorable conditions for misconduct due to a pattern of misconduct (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: 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. The Board found the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his drug addictions were contributing factors, the record clearly reflects his disregard for the requirements of military discipline and demonstrated he was unfit for further service. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on eight separate occasions for several violations of the UCMJ, thus substantiating the pattern of misconduct . An upgrade to general (under honorable) conditions would be inappropriate. Relief denied.

 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.




Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT A PATTERN OF MISCONDUCT.

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 “ afls14.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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