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NAVY | DRB | 2004_Navy | ND04-00174
Original file (ND04-00174.rtf) Auto-classification: Denied


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


ex-MSSN, USN
Docket No. ND04-00174

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.

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, authority: NAVMILPERSMAN, Article 3630620.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. “to become eligible for benefits, since time served was during war time, The Persian War, on the USS Ranger on West Pac
Was told at time of accepting the current discharge that I could apply for a change of discharge status at a later date or the discharge penalties would or could be worse. I made a mistake by going to a Grateful Dead concert and was subjected to a drug test the following day, which showed positive even though I had not personally taken anything or smoked anything but cigarettes. I feel I was contaminated from being at the concert.”

 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)     911106 - 911220  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 911221               Date of Discharge: 940202

 Length of Service (years, months, days):
         Active: 02 01 12         (Does not exclude lost time)
          Inactive: None

 Age at Entry: 21                          Years Contracted: 4
Education Level: 12                        AFQT: 31

 Highest Rate: MSSN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.13 (3)    Behavior: 3.20 (3)                OTA: 3.40
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (2), BER, AFEM
Days of Unauthorized Absence: 5

 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 :
930825:  Retention Warning: Advised of deficiency (You are advised that your conduct reveals that you have committed one or more disciplinary actions in violation of the Uniform Code of Military Justice, to wit: Article 86, unauthorized absence, from 0700, 930819 and did remain so absent until he was called by Division Officer on or about 0900, 940825.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930903:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $100 per month for 2 months, extra duty for 30 days, reduction to MSSA. Reduction suspended for 4 months. No indication of appeal in the record.
931103:  Applicant admits to heavy use of cannabis and acid from ages 16-22.

 940105:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.
940105:  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.
940111:  Drug and Alcohol Abuse Report: Marijuana abuse. Random urinalysis 931217. Physician found Applicant not dependent and recommended separation. Commanding Officer recommends separation. Comments: MSSN K_ (Applicant) is a 23 year old male with 2 years of service. Summary of DAPA evaluation shows a drastically declining service record with NJP for unauthorized absence. Medical screening diagnosed as not dependent and not amenable to treatment. Medical recommendation – administratively separate. Commanding Officer recommendation – administratively separate.
940201:  Applicant signed acknowledgment of in-patient treatment availability at a Department of Veterans Affairs (DVA) hospital.

940111:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
940127:  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 19940202 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 showing 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.

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 nonjudicial punishment proceedings for a violation of Article 86 of the UCMJ, 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.

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

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 5/93, effective
05 Mar 93 until 21 Jul 94, 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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