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NAVY | DRB | 2003_Navy | ND03-00081
Original file (ND03-00081.rtf) Auto-classification: Denied


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

ex-FCSN, USN
Docket No. ND03-00081

Applicant’s Request
The application for discharge review, received 20021016, 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 20030828. 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 by the NDRB. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was based on an isolated incident in over 4 years of service to the United States Navy. My wife developed a severe methamphetamine habit while I was away on west PAC. When I returned from west PAC I believe my wife began giving me this drug without my knowledge. I tried to offer her drug rehabilitation through the Navy but she refused treatment. The problem resulted in a one-year divorce process, which resulted in my custody of my 2-year-old son. I had never had any legal or disciplinary action against me in my prior naval service. I believe it is just and fair to upgrade my discharge to honorable at this time. Please review my service record and consider my accomplishments while in the Navy, including awards and advanced schooling.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891216 - 900228  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900301               Date of Discharge: 941103

 Length of Service (years, months, days):

         Active: 04 08 03
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (24 months extension)

 Education Level: 13                        AFQT: 72

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 3.80 (2)                OTA: 3 .80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM(wb*), SSDR, AFEM, BATTLE”E”, .45 Cal Pistol, M-14 Rifle Expert

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

940121:  NAVDRUGLAB, SAN DIEGO, CA urinalysis report indicates Applicant tested positive for amphetamine/methamphetamine.

940603:  NJP for violation of UCMJ, Article 112a: Wrongful use of amphetamine/methamphetamine.
         Award: Restriction and extra duty for 30 days, reduction to E-3, administrative separation. No indication of appeal in the record.
940627:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.

940706:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940915:  Applicant advised of his rights and having elected 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.

940917:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): FCSN H_ was given a command urinalysis on 940124 and tested positive for AMP/METHAMP. Due to FCSN H_’s above average performance and clear record he was questioned to see if he was currently taking any prescribed medication. FCSN H_ stated that he was taking Tylenol III with Codeine. CHANDLER Chief Master at Arms had transferred the month prior, so my Legal Officer was tasked with checking if Codeine would show up on a urinalysis as positive for METH/AMPMETH and was told by Squadron Medial that “yes it would”. Disciplinary and administrative actions were not pursued due to this information. When the new Chief Master at Arms reported aboard in June and informed chain of command that codeine would not test positive as meth/ampmeth, appropriate actions were taken to process this at NJP. FCSN H_ was taken to NJP on 940603. FCSN H _ then was granted leave to take care of personnel problems at home and upon his return was served with a Notice of an Administrative Board Procedure Proposed Action. FCSN H_ requested to consult with counsel and was scheduled with an appointment for 940706 at which time he elected an Administrative Board. FCSN H_’s board could not be immediately scheduled due to ship’s schedule and his TEMDU for medical treatment and recovery. His TEMDU was extended on several occasions for further recovery. Since returning to the command FCSN H_ has decided to waive his Administrative Board and is requesting to be separated at the earliest possible opportunity. FCSN H_ should be discharged at the earliest opportunity with an Other Than Honorable Discharge.

941028:  BUPERS 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 19941103 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, the Board determined this issue has no merit. The Applicant states his illegal drug use was an isolated incident in over 4 years of service and that his wife gave him drugs without his knowledge.

The Applicant failed to provide any documentation to support his claims. Use of illegal drugs requires mandatory processing for separation. The Applicant’s urine tested positive for amphetamine/methamphetamines during a command urinalysis and he was subsequently discharged. The discharge was proper and equitable. Relief denied.

 The following is provided for the edification of the Applicant. Normally, to permit relief, an error of propriety or equity must have occurred during the period of enlistment in question. No errors or inequities were discovered during a review of the Applicant’s enlistment and subsequent discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 can be considered. Examples of documentation to provide to the Board for consideration include verification of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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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