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NAVY | DRB | 2003_Navy | ND03-00079
Original file (ND03-00079.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-00079

Applicant’s Request
The application for discharge review, received 20021015, 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 20030912. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. No evidence of drug use from urinalysis reviews from officers of MIDPAC, NAVSTA PH-ENIMEMARV.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference Letter dated February 26, 2002
Character Reference Letter dated February 25, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19991228 - 20000305      COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 20000306             Date of Discharge: 20020221

 Length of Service (years, months, days):

         Active: 01 11 16
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4 (12 months extension)

 Education Level: *10                       AFQT: 36

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)              Behavior: 1.0 (1)        OTA: 1.33 (Extracted from ADB Record)

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM, SSDR

 Days of Unauthorized Absence: None

* Awarded Diploma from Hawaii (NGYCP) National Guard Youth Challenge Program January 2000.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

010702:  NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 010702, tested negative.
010723:  Applicant’s Statement: “At the time I was in full stress because of being pulled back from PAC and being put in 9 division that I did not like working for a person I did not like. I also had family problems at the time. So after about the tenth time my so called friend asked me to take a hit I took one short hit and it was at that time I realized I was doing something very very wrong so I immediately left in a hurry and regretted that moment since. The date and time in which this took place was about 0000 Hrs on 10 June 2001 on the Pona Distrik of the Big Island of Hawaii”.

010801:  NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 010730, tested negative.

010910:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance (marijuana).
         Award: Oral reprimand, forfeiture of $584.00 pay per month for 2 months, 60 days restriction to NAVSTA (suspended for months), reduction to E-X. No indication of appeal in the record.
010914:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010917:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
011030:  An Administrative Discharge Board found by a vote of 2 to 1, found that the applicant had committed misconduct due to drug abuse, and voted 3 to 1 that the Applicant be retained.

011120:  Commanding Officer, Naval Submarine Support Command recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020208:  CNMPC directed the applicant's discharge general under 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 20020221 general under 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 Applicant states there was no evidence of drug use from the urinalysis.

The Applicant made a written statement admitting that he used illegal drugs. Corroborating evidence from a drug urinalysis test is not required at Non-Judicial Punishment to convict and discharge a military member who admits to using illegal drugs.

 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the board determined that his discharge was appropriate and that his evidence of post-service conduct is insufficient to mitigate the conduct for which he was discharged. Relief denied.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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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