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NAVY | DRB | 2003_Navy | ND03-00252
Original file (ND03-00252.rtf) Auto-classification: Denied


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

ex-EWSN, USN
Docket No. ND03-00252

Applicant’s Request
The application for discharge review, received 20021203, 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 20031017. 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 stated

1. “My physical and mental health had an impact on my decision-making abilities.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated November 21, 2002
Letter from medical doctor, dated May 17, 2001
Rheumatologist report, dated May 8. 2001
Pain management report, dated October 3, 2001
Civilian medical records (4 pages)
Workplace Functional Ability Medical Report Form, dated March 13, 2001 (2 pages)
Standard Form 93, dated November 7, 1994
Standard Form 93, dated May 3, 1994
Standard Form 600, dated May 3, 1994
Standard Form 600, dated April 7, 1994/April 13, 1994
Standard Form 600, dated December 5, 1990/April 17, 1991
Standard Form 600, dated August 3, 1987/August 25, 1987
COMIDEASTFOR Navy Achievement Medal Citation
Enlisted Performance Record NAVPERS 1070/60 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19850312 – 19850610      COG
         Active: USN                        19850611 – 19900412      HON

 Period of Service Under Review :
Date of Enlistment: 19900413             Date of Discharge: 19941123

 Length of Service (years, months, days):

         Active: 04 07 11
         Inactive: None

 Age at Entry: 28                          Years Contracted: 6

 Education Level: 12                        AFQT: 84

 Highest Rate: EW1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.58 (8)    Behavior: 3.58 (8)                OTA: 3.71

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, AFEM, SSDR (2), CGBPR, MUC, NAM

 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 :

940923:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 940916, tested positive for amphetamine, methamphetamine and THC.

941011:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 940819.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 30 days, reduction to EW2. No indication of appeal in the record.
941012:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your sworn voluntary statement of 19 August 1994, which disclosed the use of drugs, the positive urinalysis of 19 August 1994, and results of commanding officer’s non-judicial punishment of 11 October 1994.
941012:  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.
941020:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

941108:  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 19941123 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. The Applicant states that his physical and mental health impacted his decision-making ability.

The Board determined that even if the Applicant’s physical and mental health did impact his decision making ability the facts are that he violated the UCMJ and there is no evidence to suggest that the Applicant was not aware of what he was doing. The Applicant was found guilty of drug abuse at Commanding Officer’s Non-judicial punishment. Drug abuse requires mandatory processing for separation. The Applicant received his rights, waived the right to an administrative separation board and was discharged. The discharge was proper and equitable. Relief denied.

 Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question. No errors or inequities were discovered during the execution of this 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 forward to the Board include proof 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 (if appropriate). At this time, the applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.
The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at 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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