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NAVY | DRB | 2002_Navy | ND02-01327
Original file (ND02-01327.rtf) Auto-classification: Denied


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

ex-FN, USN
Docket No. ND02-01327

Applicant’s Request
The application for discharge review, received 20020917, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. Subsequent to the application, the Applicant converted to a documentary review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Propriety Issue) This former member has indicated on DD 293 there were irregularities in the administration of his case by the chain of command.
2. (Equity Issue) This former member avers that there may have been problems with the administering of the urinalysis and he not being offered drug rehab for a first offense instead of discharge.

3. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     830404 - 831121  COG
         Active: USNR              831122 - 840130  HON      To enlist in USN

 Period of Service Under Review :
Date of Enlistment: 840131               Date of Discharge: 880106

 Length of Service (years, months, days):

         Active: 03 11 06
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.83 (6)    Behavior: 3.70 (6)                OTA: 3.63

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SSDR

 Days of Unauthorized Absence: 4

 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 :

870610:  NJP for violation of UCMJ, Article 112A: Knowingly and wrongfully use marijuana between 870518 and 870528.
         Award: Forfeiture of $420 per month for 2 months, restriction and extra duty for 45 days. Forfeiture for 1 month suspended for 6 months. No indication of appeal in the record.
870610:  Retention Warning: Advised of deficiency (Misconduct as evidenced by your Captains’ mast on 10 June 1987 for use of marijuana a controlled substance. Should your misconduct continue you will create an adverse pattern of misconduct which cannot be tolerated.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870622:  Applicant placed into a rehabilitation program as a result of substance abuse. Failure through inability, or refusal to participate in, cooperate in, or successfully complete such a program, or future involvement in substance abuse may result not only in disciplinary action but processing for an administrative discharge.

 870630:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 870622, tested positive for THC.

871027:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly May87, ashore off duty. Random urinalysis 870615. SAC found Applicant not dependent and recommended Level I treatment. Commanding Officer recommended retention and referred to CAAC, NASAP/NDSAP, Level I. Comments: Incident was positive random urinalysis resulting in NJP on 870621. Time in service 46 months. Rate at time of incident FN. EAOS Nov87. Performance is extremely effective and reliable.

871118:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 871105, tested positive for THC.

871211:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly May87-Nov87, ashore, off duty. Fitness for duty urinalysis March 11, 1987. CAAC found Applicant not dependent and recommended separation Commanding Officer recommended separation. Comments: Incident was a positive 4X6 urinalysis for THC. First incident was positive random urinalysis on 870615. Rate at time of incident MMFN. Time in service 37 months. EAOS Jan91. Member displays no potential for further useful naval service. UNODIR administratively processing for discharge in accordance with OPNAVINST 5350.4A.

871214:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse rehabilitation failure as evidenced by two positive urinalysis tests while on 4X6 urinalysis aftercare program; and misconduct due to drug abuse as evidenced by service record book entry.
871214:  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.
871217:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and drug abuse rehabilitation failure.

871223:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

880101:  Applicant to unauthorized absence 1000, 880101.

880105:  Applicant from unauthorized absence 0730, 880105 (4 days/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19880106 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).

In the Applicant’s issue 1 (Propriety issue), the Board determined there is no merit to this issue. The applicant’s service record shows that the applicant was given proper due process in the administration of his case. He received a retention warning after testing positive for illegal drugs in May of 1987 and was referred to a drug rehabilitaion facility. Subsequently, the applicant tested postitive for illegal drugs during a random drug test on 870615 resulting in his failure of drug rehabilitation. All rights were afforded the applicant prior to his discharge from military service. The discharge was proper and equitable. Relief based on this issue is denied.

In the Applicant’s issue 2 (Equity issue) the Board determined that this issue has no merit. The Applicant states he was not offered drug rehabilitation for a first offense instead of discharge. The record clearly shows the Applicant was enrolled in a drug rehabilitation program after testing positive for illiegal drugs on the first occasion and subsequently failed the rehab program. Relief based on this issue is denied

In the Applicant’s issue 3 (Equity issue) the Board determined that this issue has no merit. The Applicant requested relief based on his post service accomplishments but provided no documentation for the Board to review. Therefore, relief based on post-service is 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 " 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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