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NAVY | DRB | 2004_Navy | ND04-00370
Original file (ND04-00370.rtf) Auto-classification: Denied


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


ex-AZAN, USNR
Docket No. ND04-00370

Applicant’s Request
The application for discharge review was received on 20031222. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a personal appearance discharge review before a traveling panel closest to Los Angeles. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, DC area. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision


A personal appearance discharge review was conducted in Washington, D.C. on 20041005. 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 feel my discharge was improper because I feel the Navy had a biased opinion on Alcoholism and Drug Addiction. Alcoholism in the Navy is treated with Alcohol Abuse Programs and a recommendation to Alcoholics Anonymous meetings. I had two positive urinalysis tests. The first one for marijuana the second for cocaine. I was not sent to an abuse program or recommend to Narcotic Anonymous meetings. I am currently active in Alcoholic Anonymous meetings and have since completed a drug program at my own expense. I have three years clean and sober as I am writing this. I have found that Alcoholism and Drug Addiction are the same. I am seeking the same treatment and discharge as if I were Alcoholic. I hope the opinions and views held by the Navy have changed since 1989.”
Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 2. “Clemency.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from The Book House, dated February 7, 2001
 Character reference, dated March 30, 2004
Character reference, dated February 1, 2004
 Letter from A_ M_, dated April 19, 2004
Job reference, dated September 8, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None
Period of Service Under Review :
Date of Enlistment: 830407               Date of Discharge: 900126

 Length of Service (years, months, days):
         Active: 06 04 08
          Inactive: 00 05 12
Age at Entry: 20                          Years Contracted: 6 (58 months extension)

 Education Level: 12                        AFQT: 48
Highest Rate: AZ2

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.58 (9)    Behavior: 3.47 (9)                OTA: 3.62

 Military Decorations: None
Unit/Campaign/Service Awards: GCM, NEM, 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, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

830919:  Applicant to active duty for 36 months in the Active Mariner Program.
830920:  Applicant briefed on Navy's policy of drug and alcohol abuse.
840323:  NJP for violation of UCMJ, Article 134: Wrongful use of marijuana on 840207.
         Award: Forfeiture of $298 per month for 2 months, restriction and extra duty for 45 days. Forfeiture for 1 month suspended for 6 months. No indication of appeal in the record.
850610:  Retention Warning: Advised of deficiency (Wrongful use of marijuana), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
850619:  NJP for violation of UCMJ, Article 92: Wrongfully disobey a lawful written regulation by possessing a bottle of Couvoisier Cognac on 850617.
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
860919:  Applicant extended active service term for 8 months.
870519:  Applicant extended active service term for 36 months.
890407:  Applicant extended active service term for 14 months.

 890817:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890908, tested positive for cocaine.

 890907:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from appointed place of duty on 1200, 890801 to 0800, 890802, (2) Absent from appointed place of duty on 0700-0830, 890905, violation of UCMJ, Article 112A: Wrongfully use cocaine on 890808.
         Award: Forfeiture of $541 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
890920:  Drug and Alcohol Evaluation: Applicant may be dependent on drugs.
890927:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB San Diego CA 172031Z Aug 89, and positive urinalysis of 07 Feb 84.
890927:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
891004:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

891010:  Drug and Alcohol Abuse Report: Cocaine abuse, 1-3 times per week, ashore off duty. Unit sweep urinalysis on 890801. CAAC found Applicant dependent and recommended separate via VA hospital. Physician found Applicant not dependent and recommended separate via VA hospital. Commanding Officer recommended separate via VA hospital. Comments: SVM does not have the required potential for further naval service.
891103:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 891027, tested positive for cocaine.
891128:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

891220:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments (verbatim): Concur with the findings and recommendation of the Board. AZ3 S_ (Applicant) tested positive for cocaine as a result of a sub-unit urinalysis test on 08 Aug 89. The urinalysis was administered as a result of him being UA on 02 Aug 89. Based on his previous record AX3 S_ (Applicant) exhibits no potential for future productive naval service, and I have no alternative but to recommend discharge. Medical eval of 04 Oct 89, signed by CDR W_ D_ O_, MC, USN, of Naval Air Station, North Island, Branch Clinic, indicates AX3 S_ (Applicant) is not drug dependent, and recommends separation. Strongly recommend an other than honorable discharge.
900113:  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 19900126 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).
Issues 1-2: 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 Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant was offered VA treatment after being evaluated for his drug use and refused. 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.

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments should be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. E vidence of continuing educational pursuits, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.
The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case. 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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