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NAVY | DRB | 2003_Navy | ND03-01411
Original file (ND03-01411.rtf) Auto-classification: Denied


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

ex-ADAA, USN
Docket No. ND03-01411

Applicant’s Request
The application for discharge review was received on 20030825. 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. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040608. 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 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 12c, Net Active Service This Period, should read: "01 00 00" vice "00 11 29." 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. “There is nothing i can do or say that will reverse my my actions. I was on leave and at the time did not understand the impact it would have on my life. With this upgrade to my discharge I can be a more productive member of the community and look forward to continuing my life on the right path.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 2. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable conditions (OTH) to that of General, Under Honorable conditions.

The FSM served on active service from August 31, 2000 to August 30, 2001at which time he was discharged due to Misconduct.

In continuance, the FSM goes onto explain that there is nothing he can say or do to reverse the past act, which occurred while on leave. He did not at that time understand the impact it would have on his life. He submits the application for upgrade to enable him to become a more productive member of society, and keep himself and his life on the right path.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we ask the Board to review the supporting document from the FSM’s present day employer. Which attest to his good post-service employment record. That FSM S_ (Applicant) is a model employee, dependable, and with strong performance. FSM S_ (Applicant) should be given the opportunity to advance in his life and become a productive member of society and an upgrade of his discharge to that of a General, Under Honorable Conditions will be a positive first step.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’ s DD Form 214 (Member 1 and 4)
Job reference, dated August 7, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000825 - 000830  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000831               Date of Discharge: 010830

 Length of Service (years, months, days):

         Active: 01 00 00
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 69

 Highest Rate: ADAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 1.00 (1)                OTA: 2.33

 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 :

010718:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 010626.
         Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
010706:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 010702, tested positive for THC.

010718:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 020626.
         Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
010723:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to misconduct due to commission of a serious offense.
010727:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
010727:  Medical evaluation for drug abuse found the Applicant not to be dependent on ETOH, THC or any other drugs.

010801:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010813:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Random urinalysis 010626. Medical officer found Applicant not dependent. Commanding Officer recommended discharge. Comments: ADAA S_ (Applicant) was awarded NJP on 010717 for wrongful use of marijuana as detected by command urinalysis. Member was screened by a medical officer at NAS Oceana on 010727, he was determined not drug dependent with no treatment required. Member is currently being processed for an administrative discharge.

010814:  Commander, Navy Region, Mid-Atlantic directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
011009:  CNPC’s message to Commander, Navy Region, Mid-Atlantic: Applicant did not qualify for discharge as processed. Applicant was discharged other than honorable conditions by reason of misconduct due to drug abuse, however, Applicant’s notice of administrative separation processing had reason for processing as misconduct - commission of a serious offense (MILPERSMAN 1910-142). Reason for processing should have been misconduct due to drug abuse (MILPERSMAN 1910-146).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010830 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. Relief denied.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

Issue 2. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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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