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NAVY | DRB | 2004_Navy | ND04-00173
Original file (ND04-00173.rtf) Auto-classification: Denied


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

ex-AMHAR, USN
Docket No. ND04-00173

Applicant’s Request
The application for discharge review was received on 20031107. 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 D.C. area. The Applicant did not respond to the acknowledgement letter.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040720. 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 believe my Discharge should be upgraded because 1988 was the worst year of my life the circumstances are as follows my uncle b_ while on his way to visit me in California was killed when his truck hit a horse in the texas panhandle then I found out my Dad had cancer and two week’s after that I found my wife in bed with another man and went to Jail and then shortly after that my father died and it was all just more than I could handle and tried some drugs to ease my mind I guess and got popped on a drug test and discharged.

I gurantee If it had not been for those things going on in my life I would not have resorted to those drugs and I would probably will Be in the Navy to this day.

G_ W_ J_”

 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)     860623 - 860811  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860812               Date of Discharge: 881104

 Length of Service (years, months, days):

         Active: 02 02 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: AMHAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.40

 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 :

860818:  Applicant briefed on Navy's policy of drug and alcohol abuse.
870403:  NJP for violation of UCMJ, Article 112A: Wrongful use marijuana on 870218.
         Award: Forfeiture of $329 per month for 2 months, extra duty for 45 days, reduction to AMHAR. No indication of appeal in the record.
880817:  NJP for violation of UCMJ, Article 86: Failed to report to appointed place of duty, to wit: Line Division on 0001, 880718 until 1630, 880804 (17 days/surrendered).
         Award: Extra duty for 45 days, reduction to AMHAA. No indication of appeal in the record.
880817:  Retention Warning: Advised of deficiency (any further misconduct), advised of consequences of further deficiencies, and issued discharge warning.

 880826:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 880812, tested positive for amphetamine/methamphetamine.

880901:  NJP for violation of UCMJ, Article 86: Failed to report to appointed place of duty at the prescribed time, to wit: Line Division on 0900, 880829 until 0830, 880830, violation of UCMJ, Article 112A: Wrongful use of amphetamine/methamphetamine on 880805.
         Award: Forfeiture of $310 per month for 2 months, restriction for 60 days, reduction to AMHAR. No indication of appeal in the record.
880914:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.
880914:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
880927:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.
880930:  Drug and Alcohol Abuse Report: Amphetamines abuse, 1 to 3 times per week, ashore off duty. Unit sweep urinalysis on 880805. Commanding Officer recommended separation via VA hospital. Comments: AMHAA J_ (Applicant) is 20 years old with 2 years, 2 months time in service. He is a poor worker with an extensive disciplinary history including a previous NJP for drug abuse. He is currently being processed for separation. AMHAA J_ (Applicant) signed a Pg 13 refusing all treatment.

881005:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881024:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881104:  Applicant declined inpatient treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19881104 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 contends that 1988 was the worst year of his life due to multiple personal problems and he “tried some drugs to ease my mind.” While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct, demonstrating he was unfit for further service. The Applicant’s service record is marred by two nonjudicial punishment proceedings for illegal drug use. The Applicant tested positive for THC in 1987 and amphetamine/ methamphetamine in 1988, thus substantiating the misconduct for which he was separated. Further, the Applicant’s Drug and Alcohol Abuse Report shows amphetamine abuse 1-3 times per week. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by three nonjudicial punishment proceedings for four violations of the UCMJ to include violations of Article 112a for illegal substance use and Article 86, unauthorized absence. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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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