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NAVY | DRB | 2003_Navy | ND03-01194
Original file (ND03-01194.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-01194

Applicant’s Request
The application for discharge review was received on 20030702. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040514. 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.


 The NDRB did note administrative error(s) on the original DD Form 214. Block 5, Date of Birth, should read: “731102” vice “720721,” and Block 12a, Date Entered AD This Period, should read: “93 SEP 16” vice “93 FEB 02,” and Block 12c, Net Active Service This Period, should read: "02 05 08" vice "03 00 22." The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I have reviewed some casses online where a lot of Navy personel was found to have THC in their urine and was only busted down in rank. I find it unfair that I was discharged for the same thing. I have never even recieved my service records to this day. While I served onboard the USS Shenandoah I was an outstanding sailor and loved by my division all the way up to Captain D_. I was even awarded a letter of accomadation from the Commander of the Sixth Fleet. I am in college now raising a family and all I would like is to gain access to my GI Bill. If not possible just a paper to clear my name. I am very proud to have served in the US Navy and wished to be considered a vetern by those around me. Thank You.”
The Applicant marked “I have listed additional issues as an attachment to this application” but none were found.

 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)     930202 - 930915  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930916               Date of Discharge: 960223

 Length of Service (years, months, days):

         Active: 02 05 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 57

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 3.80 (1)                OTA: 3.60

Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 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 :

950209:  NJP for violation of UCMJ, Article 91: Disobey a lawful order, violation of UCMJ, Article 117: Wrongful use of provoking words, violation of UCMJ, Article 134: Communicate a threat and drunk and disorderly.
         Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
950209:  Retention Warning: Advised of deficiency (VUCMJ, Art. 91, willful disobedience of a lawful order, Art. 117, wrongful use of provoking words, Art. 134, communicate a threat and drunk and disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951201:  Applicant advised of 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.

951207:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record. [Extracted from Commanding Officer’s message dated 951219.]
951213:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment on 951207. [Extracted from Commanding Officer’s message dated 951218.]
951218:  Drug and Alcohol Abuse Report: Marijuana abuse/possession, ashore off duty. Random urinalysis 951116. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: 95 Nov 16 – SA T_ (Applicant) tests positive for THC, 95 Dec 07, CO’s NJP, VUCMJ Art 112a, wrongful use of marijuana. Awarded: 45 days restriction and extra duties, reduction in rate to E1, and FF $427 PPM x 2 months. Due to the Navy’s zero tolerance for drug abuse, SA T_ (Applicant) is being processed for separation. Final DAAR this incident. Age: 22 TIS: 2 yr/3 mos EAOS: 15 Sep 97.
951219:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960131:  Note handwritten on CO’s message of 951218: Phoncon with command LN2 H_ today They indicate typo on msg only SOA was dtd & signed after LON. [Extracted from Commanding Officer’s message dated 951218.]

960205:  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 19960223 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. 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, the Applicant’s record is marred with the awarding of NJP for willful disobedience of an order, use of provoking words, communicating a threat and drunk and disorderly conduct. Relief denied.

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. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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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