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NAVY | DRB | 2002_Navy | ND02-01079
Original file (ND02-01079.rtf) Auto-classification: Denied


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

ex-PRAR, USN
Docket No. ND02-01079

Applicant’s Request
The application for discharge review, received 020723, 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 030424. 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, as submitted

1. Dear Honorable Sir or Madam:

I am writing to you in a desperate request to grant me medical benefits at the Albuquerque VA Medical Center.

On May 11, 2002, while helping my father trim his trees I fell about 38 feet and broke my back. I was taken to the University of New Mexico Hospital where I was diagnosed with a fractures to my spine from T-10 to T-12. Since I had just moved back from Arizona I did not have any medical insurance or coverage. I was working as a part-time bus driver trying to get into the work force. It was my misfortune that I was not able to qualify for any medical benefits, and I am now unemployable due to my condition.

My situation is that I was transferred from University of New Mexico Hospital to the Albuquerque VA Medical Center (VAMC) because I was a Navy veteran. While at the VAMC it was discovered that my character of service required a waiver to be admitted to the VAMC hospital to receive medical care, I was then released by the VAMC to my home without any medical care, physical therapy or any other orthopedic equipment. I am using a borrowed wheelchair that is too small and it is causing me great pain and discomfort. I need immediate medical help for my broken back condition. I am paralyzed from the waist down and need physical therapy and follow-up on my broken back condition.

This request is being made to you because I received an Other Than Honorable discharge. I served in the US Navy from August 20,1997 to November 2, 1999. I enlisted as a nontraditional recruit when I was 27 years old. During basic training I seemed to be singled out because of my age. I was the "Old Guy". It seemed as thou I was an odd ball, however I tried to blend in as much as I could and I worked hard at doing my part above and beyond what was expected of my assignment and me. After basic training I was eager to move onto my specialty school. I graduated second out of 13 peers. I continued to try and excel in my duties and responsibilities as a Parachute Rigger. On two occasions I was recognized in letters of appreciation for my hard and diligent work. See Enclosures 1 and 2. Even thou I was working hard to fit in, I seemed not to be completely in the circle. Just as an example, when I first reported to my duty station Marine Helicopter Training Squadron as an E- 1, I was asked if I had been busted down. I told the marine Sargent that I had just gotten out of boot camp, I asked why he thought I had been busted down. He said "because of your age, your to old to be an E-1."

As my family and I were starting to get settled into Navy life I made a critical mistake. My wife and I got invited to an off base party by one of my shipmates. I thought this was a good way to get to know the guys in a nonmilitary environment. After I got there I engaged in some drinking and just having fun with the guys. As the evening progressed I started playing cards, spades to be exact. About midnight a civilian who was at the party lit up a marijuana cigarette. It started to get passed around and I refused to have a puff. I immediately got pressured to join in smoking the marijuana cigarette. As I could see all my shipmates were smoking the pot. They were all saying, "no ever gets caught." The peer pressure along with the booze got the best of me, so I joined in and took a few puffs. This was the biggest mistake of short Navy career! My SSN came up for a random UA and it was discovered that I had smoked marijuana. All the hard work that I had accomplished went down the drain. I was discharged from the Navy shortly after.

Please take a good look and read my two letters of appreciation to see that I was trying to be a good sailor. Look at the two good years I served in the Navy and not just one night of poor judgment. I realized that I let down my supervisors, my Chain of Command, the Navy and most of all my family, I regret that I failed in my judgment and I wish I could take back that night and do the right thing, however, that's not possible. I have tried to be a good citizen and father since my discharge and I make this request and plea in the best interest of my quality of life and for my family.

If you have any further questions, you may contact me at the following:

(address and home telephone number deleted)

Respectfully,
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of reference from 1 st Lieutenant, dated March 1, 2000
Letter of recommendation from 1 st Lieutenant, dated October 27, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970320 - 970819  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970820               Date of Discharge: 991102

 Length of Service (years, months, days):

         Active: 02 02 13
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: PRAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

 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 :

990728:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 990714, tested positive for (unreadable).

990813:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, tested positive for marijuana use on a squadron urinalysis on 990707.
         Award: Extra duty for 30 days, reduction to PRAA. No indication of appeal in the record.
990826:  Medical evaluation for drug abuse found the Applicant to be a drug abuser. Applicant denies cannabis use.

990907:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 990830, tested positive for (unreadable).

990910:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance on 990825.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to PRAR. No indication of appeal in the record.
990927:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive screenings on urinalyses, messages dated 281626Z JUL99 and 072139 SEP99.
991007:  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.
991007:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): On 28 September 1999, I conducted a personal interview with PRAR (Applicant) concerning his pending administrative separation. PRAR (Applicant) is extremely remorseful for his actions. Prior to his positive urinalysis screenings he had been a model Sailor and was well respected throughout the command. I feel that he is salvageable and should be awarded an Other Than Honorable Discharge (suspended for six months), allowing him a chance to prove his loyalty to the U.S. Navy. PRAR (Applicant) wishes to continue his obligation and would like to make a career of the naval service.

991022:  CNPC 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 991102 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. There is credible evidence in the record that the Applicant used illegal drugs. Despite the positive aspects of the Applicant’s record, drug abuse warranted processing for separation, normally under other than honorable conditions. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Relief denied.

 Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity 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. Relief not warranted.

The Applicant 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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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 " 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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