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NAVY | DRB | 2003_Navy | ND03-00793
Original file (ND03-00793.rtf) Auto-classification: Denied


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

ex-AZAN, USN
Docket No. ND03-00793

Applicant’s Request
The application for discharge review was received on 20030403. 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 medical substance abuse. The Applicant requests a personal appearance discharge review before a traveling panel closest to Dayton, Ohio. The Applicant listed the American Legion as the representative on the DD Form 293. Subsequent to the application, the Applicant converted the review to a documentary review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312. 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 or reason for discharge was discovered by the NDRB. The Board’s vote was unanimous that the character and reason for 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

 Applicant’s issues, as stated on the application:

Issue 1: “My under other than honorable discharge was based on alcohol & drug abuse which in turn I became AWOL because of my abuse. My decision then were based on medically sick individual.

Issue 2: The under other than honorable discharge is very improper. My substance abuse didn’t cause harm to any individuals except myself. I currently receive social security from my alcohol & drub abuse. That I why I wish for a medical up-grade.

Issue 3: My under other than honorable discharge isolated me from aid I could have received. –Un-employment comp./Dependent status with ex-wife who’s in military
         V.A. medical/psych care.

Issue 4: Discharge under other than honorable due to alcohol/drug abuse. The social security administration has stated medical/psychological and social disease.

 Additional issues submitted by Applicant:

5. "American Medical Association considers alcohol, drug abuse as a disease since 1954. I’m currently sober and clean from all substances and I’m 24 credit hour away from obtaining an Ohio certification in substance abuse & counciling.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

6. “(Equity Issue) This former member finally requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Letter from Social Security Administration, dated March 18, 2003 with a hand-written not from the Applicant (2)
Letter from Social Security Administration, dated March 23, 2003
Letter from Social Security Administration, dated March 27, 2003
Letter verifying Applicant is a resident of Halfway House Program, dated January 9, 2004
Certificate of achievement, dated December 30, 2003
Certificate of achievement, dated December 1, 2003
Certificate of recognition for participation, dated December 30, 2003
Bill from Sinclair Community College
Identification Card for Sinclair community College
Social Security Card

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 840730               Date of Discharge: 890117

 Length of Service (years, months, days):

         Active: 04 05 18
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (12 months extension)

 Education Level: 14 1/2           AFQT: 28

 Highest Rate: AZ3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.04 (6)    Behavior: 2.96 (6)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 17

 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 :

840802:  Applicant briefed on Navy's policy of drug and alcohol abuse.
850628:  NJP for violation of UCMJ, Article 86 (3 specs) (1-3) Absence without leave, violation of UCMJ, Article 92: Insubordinate conduct toward Petty Officer, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 112A: Wrongful use of controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to AA, oral admonition. No indication of appeal in the record.
850628:  Retention Warning: Advised of deficiency (Going on unauthorized absences, failure to obey Chief Petty Officers, making false official statements, and wrongful use of marijuana.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 860429:  NJP for violation of UCMJ, Article 86: Unauthorized absence for less than 4 hours on 860404.
         Award: Restriction for 30 days, oral reprimand. No indication of appeal in the record.
860429:  Retention Warning: Advised of deficiency (Unauthorized absence and or failure to go to place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870521:  NJP for violation of UCMJ, Article 91: Willful disobedience of a Petty Officer.
         Award: Forfeiture of $100 per month for 2 months, reduction to AA. Reduction suspended for 6 months. No indication of appeal in the record.
880310:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 880302.
         Award: Forfeiture of $100 per month for 1 month, reduction to AA. Reduction suspended for 3 months. No indication of appeal in the record.
880513:  Applicant completed treatment for alcoholism and drug abuse.

880527:  Applicant’s enlistment extension for 12 months executed.
880720:  Message from USS FORRESTAL: Report alleging Applicant stole a checkbook on 880213, wrote a check for $52.50 on 880312 by forging owner’s name, and dishonorably failed to make restitution, in violation of UCMJ Articles 121, 123, and 134. Offenses occurred at Applicant’ former command.

880930:  Psychologist evaluation: Psychologically addicted to cocaine and related substances. Recommend separation. Recommend Applicant be afforded inpatient AA drug rehabilitation.

881024:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by four Commanding Officer’s nonjudicial punishments to include two specifications of disobeying a Petty Officer, the wrongful use of marijuana and making a false official statement.
881026:  Applicant advised of rights and having consulted 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.
881104:  Drug Evaluation: Psychologically dependent on drugs/alcohol. Recommend separation via VA hospital.
881122:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881216:  Applicant to unauthorized absence 0715, 881216.

881220:  Applicant from unauthorized absence 1530, 881220 (4 days/surrendered).

 881227:  Applicant to unauthorized absence 0730-0845, 881227.

881228:  Applicant to unauthorized absence 0750, 881228.

 881229:  Applicant from unauthorized absence 0730, 881229 (23 hours and 40 minutes).

881229:  Applicant to unauthorized absence 1030, 881229.

890113:  Applicant from unauthorized absence 0800, 890113 (13 days/surrendered).

890105:  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 19890117 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).

Issues 1, 2, 4 and 5. 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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Additionally, n o other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation, as requested, would be inappropriate. Relief denied.

Issue 3. The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Issue 6. 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 provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.


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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