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NAVY | DRB | 2004_Navy | ND04-00373
Original file (ND04-00373.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00373

Applicant’s Request
The application for discharge review was received on 20031229. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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. Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20040910. 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 hadnt got in any real trouble for the discharge. I had went awol for 29 days because the navy wasnt what I expected and I was disciplined with a 45 day restriction. So when I went to captains mass I requested out of the military and that the whole story. It was my first offense.”

 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: None

 Period of Service Under Review :
Date of Enlistment: 880826               Date of Discharge: 890502

 Length of Service (years, months, days):

         Active: 00 06 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 38

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.80 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 25

 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 :

880919:  Ordered to active duty for 36 months under the Active Mariner program.
890216:  UA from USS Tripoli (LPH-10) at Naval Station, San Diego, CA 0700, 890216.

890311:  DAAR indicates marijuana abuse as a result of a random urinalysis, found not dependent, recommended for separation not via VA hospital.

890313:  Surrendered onboard TPU Great Lakes, IL 1830, 890313. Transferred to USS Tripoli (LPH-10), Located at Naval Station, San Diego, CA. Retained onboard pending disciplinary action.

890314:  Report of Return of Deserter. Applicant surrendered to military authorities on 890313 (1830) at TPU GLAKES, IL. Returned to military control 890313 (1830). Transferred to USS Tripoli to report no later than 0400, 890315.
890330:  NJP for violation of UCMJ, Article 86: UA from unit for 25 days, violation of UCMJ, Article 91: Disrespect towards a petty officer, violation of UCMJ, Article 92: Failed to obey a lawful order, violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Award: Forfeiture of $349.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
890406:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by your CO’s NJP of 890330 for violation of the UCMJ, Article 86-Unauthorized absence from your unit, violation of the UCMJ, Article 91-Disrespect toward a petty officer, violation of the UCMJ, Article 92-Failure to obey a lawful order, and violation of the UCMJ, Article 112a-Wrongful use of a controlled substance, to wit: marijuana.
890406:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
890420:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by your CO’s NJP of 890330 for violation of the UCMJ, Article 86-Unauthorized absence from your unit, violation of the UCMJ, Article 91-Disrespect toward a petty officer, violation of the UCMJ, Article 92-Failure to obey a lawful order, and violation of the UCMJ, Article 112a-Wrongful use of a controlled substance, to wit: marijuana.

890425:  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 19890502 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: Applicant contends his misconduct was an isolated incident and his misconduct was the result of Naval service not living up to his expectations. Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. When the service of a member of the 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 nonjudicial punishment proceedings for violations of Articles 86, 91, 92 and 112a of the UCMJ. 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 denied.


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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