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NAVY | DRB | 2004_Navy | ND04-00192
Original file (ND04-00192.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND04-00192

Applicant’s Request
The application for discharge review was received on 20031113. 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 discharge 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.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112. 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 respectfully ReQuest my discharge be upgraded due to my previous service records. All my quartly evaluations – which showed me to being a 4-0 sailor and my previous honorable discharge from active naval reserve should speak for themselves.
I was chosen for pre-com duty as shop supervisor for the pipe shop. I was an E-5 filling a E-8 billet. My 4.0 performances and qualifications were factors leading to my [illegible] and honor of being chosen for pre com duty. However, once reaching my new duty station in San Diego Calif. I tested positive on a urinalysis for THC. Being a E-5 and on pre com I had to attend mass before the base commander. Who never even looked at my service record and being new on Base I had no one to speak on my behalf. My service record shows I had never had any previous for such offenses. And I never had a chance to explain my case. I understand that the navy policy at the time was 0 tolerance. But I fill I should have at least been giving a chance to plead my case and to have my service record reviewed which would have proven I was a 4.0 sailor with career intentions. However the base commander never even open my records. This discharge ended my career and has shatterd my life in so many ways. I again respectfully request you to review my service record and my 4.0 evaluations, all my qualifications and my previous honorable discharge from active naval reserve. Years 1976-1982.
If you desire me to in person plead my case further, I will do my best to make arrangements for that. To this day the U.S. Navy is still the love of my life and I would give anything to have been able to finish my career and even to have given my life for my country.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 dtd 890324
Applicant’s DD Form 214 dtd 811006
3 pages of performance evaluations

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR              761007 - 791006  RELACDU
         Inactive: USNR            791007 – 800726  To Rpt ACDUTRA
         Active: USNR              800727 – 800808  RELACDUTRA
         Inactive: USNR            800809 – 821006  HON
         Inactive: USNR(DEP)               860702 – 860903  COG


 Period of Service Under Review :
Date of Enlistment: 860904               Date of Discharge: 890324

 Length of Service (years, months, days):

         Active: 02 06 21
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 12                        AFQT: 74

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)    Behavior: 3.70 (4)                OTA: 3.75

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 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 :

890105:  Medical evaluation for drug abuse: [0 evidence of physical or psychological dependence. Recommend level I.]
890126:  DAAR. Abuse denied. Identified by random urinalysis.

890126:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 881214.
Award: Forfeiture of $520 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
890127:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
890127:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
890203:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

890303:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890324 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. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. 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.

The Applicant states, “I never had a chance to explain my case” and, “I [feel] I should at least have been [given] a chance to plead my case.” The Applicant waived his right to an Administrative Board and elected not to consult with counsel on 19890127. The Board found neither the documents submitted by the Applicant nor the evidence of record indicate the Applicant’s NJP or subsequent administrative discharge were improper or inequitable. 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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