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NAVY | DRB | 2004_Navy | ND04-00104
Original file (ND04-00104.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND04-00104

Applicant’s Request
The application for discharge review was received on 20031022. 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. In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area. Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20040812. 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 – 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:

1. “I had 3 honorable discharges prior to getting into trouble w/Drugs. I went to a Re-hab program but after successfully completing this program I was given an OTH. I feel this is unfair and would like to my discharge upgraded”
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: None
         Active: USN                        740131 - 780104  HON
                  USN                       780331 - 811222  HON
                  USN                       811223 - 861202  HON

 Period of Service Under Review :
Date of Enlistment: 861203               Date of Discharge: 890227

 Length of Service (years, months, days):

         Active: 02 02 25
         Inactive: None

 Age at Entry: 32                          Years Contracted: 4

 Education Level: 12                        AFQT: 25

 Highest Rate: HT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (4)    Behavior: 3.20 (4)                OTA: 3.40

 Military Decorations: GCM(2)

 Unit/Campaign/Service Awards: NDSM, SSDR, NER

 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 :

870615:  NJP for violation of UCMJ, Article 112A: Use of cocaine.
         Award: Forfeiture of $509.70 per month for 2 months, restriction and extra duty for 45 days, reduction to HT3. No indication of appeal in the record.
880523:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 112A: Cocaine.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 880901:  Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty. Abuse denied. Service directed urinalysis on 880715. Physician found Applicant not dependent. Commanding Officer recommended separation. Comments: SNM’s past/present military work record at this command has been a little above average to poor with a overall rating of below average. SNM has no potential for future naval service. The command is processing SNM for a admin. separation due to two counts of drug abuse.

880808:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 880715, tested positive for cocaine.

881019   NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 881013, tested positive for cocaine.

881026:  NJP for violation of UCMJ, Article 112A: Wrongfully use a scheduled II controlled substance, to wit: cocaine on 881011.
         Award: Forfeiture of $300 per month for 2 months, reduction to HTFN. No indication of appeal in the record.
881031:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis testing.
881031:  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.
881101:  Drug and Alcohol Abuse Report: Cocaine abuse,, 1 to 3 times per month, ashore off duty. Unit sweep urinalysis on 881011. Physician found Applicant dependent. Commanding Officer recommended separation via VA hospital. Comments: SNM’s past and present military work record at this command fluctuates between below average to marginal. SNM has no potential for future naval service. Command is processing SNM for admin. separation. This report was caused by NJP action against SNM for violation of UCMJ Article 112A: Cocaine on 881026.
881103:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881205:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881214:  Command requested Applicant’s discharge be held in abeyance until resolution of further disciplinary action. Applicant under investigation by NIS for possible court martial offenses.

890106:  Command advised CNMPC of completion of investigation and command will process Applicant for separation.

890203:  Applicant admitted into Wes Los Angeles VA Hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890227 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. 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 Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions thus substantiating the misconduct . 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 he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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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