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NAVY | DRB | 2003_Navy | ND03-00650
Original file (ND03-00650.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND03-00650

Applicant’s Request
The application for discharge review was received on 20030305. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to physical disability. The Applicant requests a documentary record discharge review. The Applicant listed Civilian Counsel as the representative on the DD Form 293. In the acknowledgement letter the applicant was informed that she was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205. 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 and reason for 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 stated

 Issues submitted by Applicant’s counsel/representative ( CIVILIAN COUNSEL):
1. “Substantial mitigation due to painful and debilitating medical conditions during the time of events leading to discharge renders OTH discharge unfair.”
 {Counsel provided discussion related to issue}.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s Declaration Letter dated February 8, 2003 (2 pages)
Report of Operation from Morristown Memorial Hospital dated January 18, 1999
Patient History and Physical Examination dated September 23, 2002 (4 pages)
Invoice dated January 14, 2003
Closing Summary Report from Bayside Psychological Services, Inc dated March 27, 2001
Letter from Attorney at Law T__ W. T__ dated February 26, 2003
Copy of DD Form 214
Copy of DD Form 215
Copy of Certificate of Completion (Class “C” welding School)
Copies from Medical Record (51 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860514 - 861005  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 861006               Date of Discharge: 891211

 Length of Service (years, months, days):

         Active: 03 02 06
         Inactive: None

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

 Education Level: 12                        AFQT: 73

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.84 (5)    Behavior: 3.80 (6)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, BATTLE”E”

 Days of Unauthorized Absence: None

 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 :

871016:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 112a: use of marijuana), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871016:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana, a schedule I controlled substance on or about 870809-870909.
         Award: Forfeiture of $200.00 pay per month for 2 months, extra duty for 60 days. No indication of appeal in the record.

880106:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 112a for wrongful use of controlled substance, to wit: Marijuana), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890531:  Retention Warning: Advised of deficiency (Any further drug/alcohol abuse or misconduct that is drug or alcohol related.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891031:  NJP for violation of UCMJ, Article 112A: Did at or near C-1 Welding School on or about 890929 wrongfully use THC, a controlled substance.
         Award: Forfeiture of $446.00 pay per month for 2 months, restriction to NAS Alameda CA 60 days, reduction to E-3. No indication of appeal in the record.
891101:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct as evidenced by commission of a serious offense.

891102:  Medical officer’s evaluation found the Applicant not drug dependent.
891102:  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.

891103:  DAAR indicates marijuana abuse as a result of a random urinalysis, found not dependent, recommended for separation not via VA hospital.

891103:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use ) and misconduct due to commission of a serious offense.

891126:  CNMPC 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 19891211 under other than honorable conditions for misconduct due to drug abuse (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’s issues are without merit. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Board found no indication in the record that the Applicant was denied treatment for her medical condition. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. At this time the Applicant has not submitted sufficient documentation for the Board to consider.

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 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 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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