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NAVY | DRB | 2003_Navy | ND03-00280
Original file (ND03-00280.rtf) Auto-classification: Denied


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

ex-AEAR, USN
Docket No. ND03-00280

Applicant’s Request
The application for discharge review was received on 20021204. The Applicant requests the characterization of service received at the time of discharge be changed to general. The Applicant requests 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 20031114. 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 considered 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 “Dear Ma’am or Sir, I J_ E_ G_ (Applicant) would like to discuss some issues and concerns that were not incorporated at my original discharge hearing. (1) At the time of my misconduct occurring I was living off-base with a civilian, that happened to be family. I allowed her to hold parties at some of these parties there were activities going on that the Navy does not support. One night it attracted the attention of my neighbor , one YNSN D_ A_ M_, who worked at legal on NAS Pensacola NATTC. She noticed some of the attendants to the parties as sailors she helped process out and where now civilians. (2) I have seizures and one happened while one of my sister’s parties was going on I don’t remember the exact date, but I do remember knowing that my sister was crying and holding my hand saying that she didn’t know what else to do to make me stop (seizing) I had been unconscious for about an hour and a half, I had had a grand mal seizure, she hadn’t seen me have one before, so she gave me the marijuana cigar she was smoking, and I took it without really thinking. I only wanted to stop shaking. I know and I knew about the zero tolerance policy, but my captain did not know about grand mal seizures and how disoriented you can become. I knew that I would be discharged, but I did not know that me being a .17 instead of .15 would cause me to be charged with misconduct, and to be harassed by the officers in legal to only tell the captain that I was guilty. Since I was held over after my graduation at NATTC for my seizure disorder, the officers at legal made me feel that pleading guilty to the captain was the only way I could come back home between then and my next set of orders.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000504 - 000516  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000517               Date of Discharge: 010706

 Length of Service (years, months, days):

         Active: 01 01 20
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 72

 Highest Rate: AEAR

 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

 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 :

010612:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010605, tested positive for THC.

010627:  NJP for violation of UCMJ, Article 112A: Wrongful used of a controlled substance, to wit: marijuana.
         Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days, reduction to AEAR. No indication of appeal in the record.
010627:  Applicant refused treatment and counseling for alcohol/substance abuse.

010627:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010627:  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.
010628:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010629:  Chief of Naval Education and Training 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 20010706 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).

 A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The record is devoid of any evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. There is also no evidence in the service record that superior officers improperly coerced the Applicant into pleading guilty at the NJP. The Applicant’s service record is marred by non-judicial punishment (NJP) for illegal drug use. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated she was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. 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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, 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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