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NAVY | DRB | 2004_Navy | ND04-00384
Original file (ND04-00384.rtf) Auto-classification: Denied


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

ex-AEAR USN
Docket No. ND04-00384

Applicant’s Request
The application for discharge review was received on 20040107. 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 Fargo, North Dakota or Minneapolis, MN. 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, D.C. area. The Applicant listed North Dakota Department of Veterans Affairs as the representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20041109. 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 at the time of discharge was discovered by the NDRB. However, after consideration of the Applicant’s post service accomplishments and good citizenship, the Board determined that relief, as requested, was warranted on the basis of equity. The Board’s vote was 4 to 1 that the character of the discharge shall change. The discharge shall change to: GENERAL (UNDER 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. “My Alcohol & Drug use
I haven’t used Drugs/Alcohol in the Last 11yrs.
While serving in the US Navy, I did the best I could with my Drug & Alcohol problem. I had Above Average EVALUATIONS & I TRULY BELIEVE I Did ABOVE AVERAGE WORK. SINCE My Discharge FROM the US Navy I’ve turned MY life AROUND. I haven’t used EITHER DRUGS OR ALCOHOL IN the LAST 11 years.
I DO REGRET MY BEHAVIOR & TYPE OF DISCHARGE. I WOULD Like to see if I CAN UPGRADE My DISCHARGE CONCERNING THIS ISSUE.”
Additional issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS, DISABLED AMERICAN VETERANS, AMERICAN LEGION , PRIVATE REPRESENTATIVE, CIVILIAN COUNSEL ):

“1. XXXXXXXXXXXXXXXXXXXXX.”

 Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS, DISABLED AMERICAN VETERANS, AMERICAN LEGION, PRIVATE REPRESENTATIVE, CIVILIAN COUNSEL ):
“1.XXXXXXXXXXXXXXXXXXXXXX.”

Submitted by Applicant subsequent to submission of application:

“1. XXXXXXXXXXXXXXXXXXXXXXXX.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Employee service award from Dakota Gasification Company, dated 1996 to 2001
Recertification certificate in Maintenance and Overhaul, dated February 26, 2001
Certificate for Licensed Security Provider, dated October 15, 2001
Certificate for Emergency Medical Technician, dated March 19, 1997
Certificate for Industrial Fire Training, dated December 3-6, 2001
Certificate for Industrial Fire Brigade Instructor, dated February 4, 2000
Certificate for Hazardous Materials Incident Command, dated July 10-12, 2001
Certificate for Hazardous Materials Technician, dated November 29 – December 10, 1999
Certificate for Tank Car Specialist, dated November 3-7, 2003
Certificate for Advanced Tank Car Specialist, dated November 10-14, 2003
Character reference from J_ C_, sister and A_ C_, brother in law, dated December 17, 2003
Character reference from M_ M_ I_ and T_ M_ I_, dated December 17, 2003
Character reference from A_ L_ F_, Human Service Aide, dated December 17, 2003
Character reference B_ S_, Event Promotor, dated December 17, 2003
Character reference from L_ M_, dated December 17, 2003
Character reference from J_ S_ and C_ S_, dated December 13, 2003
Character reference from C_ K_, dated December 13, 2003
Character reference from D_ P_ and L_ P_, dated December 17, 2003
Character reference from L_ H_, and W_ H_, dated December 17, 2003
Character reference from M_L_T_, dated December 17, 2003
Character reference from D_ H_, dated December 17, 2003
Letter from Applicant, dated November 12, 2004
Drug Lab Testing Custody and Control Form, dated November 11, 2004
North Dakota Criminal records check, dated October 1, 2003
WorkLife PrimCare Results of Controlled Substance Test, dated November 15, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850517 - 851215  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 851216               Date of Discharge: 891115

 Length of Service (years, months, days):

         Active: 03 11 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 9                         AFQT: 47

 Highest Rate: AE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.68 (5)    Behavior: 2.60 (5)                OTA: 2.55

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR 2 ND Award, NER

 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 :
851217:  Applicant briefed on Navy's policy of drug and alcohol abuse.
870715:  Report of Apprehension Custody & Disposition: On 870715 around 0055, Applicant detained at Tidewater Area Shore Patrol headquarters for public intoxication and possession of another military members ID.

870812:  NJP for violation of UCMJ, Article 134: Wrongful possession of someone else’s ID card.
         Award: Forfeiture of $200.00 per month for 1 month, restriction and extra duty for 15 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

880218:  Substance Abuse Prevention and Control: Evaluation states that the Applicant appeared to be an alcohol abuser.

880225:  Counseling and Assistance Center Screening Evaluation: Recommendation of Level II treatment, AA 3 times weekly, Antibuse therapy and command guidance and counseling.

880331:  Retention Warning: Advised of deficiency (Self-referral from alcohol abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 880812:  Retention Warning: Advised of deficiency (Drunk in public, courtesy turn over by law enforcement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 890902:  Incident/Complaint report: On 890902 at 0620 off post, Applicant and another serviceman was engaged in a fight at a bus stop on Langley Drive and Bennington Road. Applicant was charged with simple assault, drunk and disorderly, disobeying a lawful order and disrespect to a law enforcement official.
890907:  NJP for violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 134: Drunk and disorderly, violation of UCMJ, Article 91: Acting belligerent and obnoxious. On about 890902, performed assault and an act of drunk and disorderly and by continually act belligerent and obnoxious toward a security patrolman.
Award: Forfeiture of $391.00 per month for 2 months (suspended unto 891115). Reduction to E-2 (Suspended unto 891115).

 890922:  NAVDRUGLAB, Norfolk, VA reported Applicant’s urine sample, received 890913, tested positive for THC.
890927:  Vacation of suspended sentence awarded at NJP on 890907.

 890927:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana, a control substance.
Award: Forfeiture of $349.00 per month for 2 months, restriction and extra duty for 60 days, reduction to E-1. No indication of appeal in the record.
891003:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense and by a pattern of misconduct as evidenced by Commanding Officer’s NJP dated 890927, 890907, 870812.
891004:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), waived all rights.
891017:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, commission of a serious offense, and by a pattern of misconduct as evidenced by Commanding Officer’s Non-Judicial punishment dated 890927, 890907, and 870812. Commanding Officer’s comments: AEAR F_ (Applicant) performance while at this command has been average at best. His failure to improve performance after completion of alcohol abuse rehabilitations has only served to be disruptive to squadron routine and morale, and he continues to be an unneeded administrative burden. His persistent use of alcohol and most recently drugs has resulted in lost time from work and his volatile nature as a result of substance abuse has been the underlying factor for all of his numerous violations of the UCMJ. Accordingly, due to AEAR F_ (Applicant) behavior, which continues to degrade the good order and discipline of this command, behavior which is incompatible for continued military service, approval for immediate separation is requested.

891109:  DAAR: Marijuana abuse incident was on 890927. Urinalysis was done by a unit sweep. DAPA was unable to determine if Applicant had a dependency on THC and not eligible for counseling/education rehabilitation. DAPA recommends separation from service via VA Hospital. The Medical Officer’s evaluation states Applicant is dependent on drugs and is not eligible for counseling/education and recommends separation from service via VA Hospital. Commanding Officer is pursuing Applicant for the process of separation and separation from service via VA Hospital in conclusion with NJP.

891109:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse use.

891109:  Applicant offered but declined in-patient treatment at a VA hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891115 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, testimony, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D) at the time of issuance. However, after consideration of the Applicant's substantial post service accomplishments and good citizenship, the Board determined that relief was warranted. The applicant provided verifiable employment references, employment certifications, criminal records check, negative drug test results, and character references. The Board voted four to one that the discharge characterization shall change to General (Under Honorable conditions). Relief is granted as requested.


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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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