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NAVY | DRB | 2004_Navy | ND04-00389
Original file (ND04-00389.rtf) Auto-classification: Denied


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

ex-BM2, USN
Docket No. ND04-00389

Applicant’s Request
The application for discharge review was received on 20040105. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge 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 20040922. 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 1910-146, formerly Article 3630620.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “The reason why I believe I got an unfair discharge is because my command in my opinion did not conduct a proper discharge procedure. I was not given any option of rehabilitation or counseling. I was forced to test for drugs off a tip from a civilian who was trying to ruin my life, who has ruined my life. My military record is clean with no other glitches or smears other than this. I served 7 hardworking years as a dedicated sailor only to have it stomped out over 1 night of pleasure. For the record I was on leave when I indulged in marijuana.”

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: USN                        920413 - 970126  HON

 Period of Service Under Review :
Date of Enlistment: 970127               Date of Discharge: 991220

 Length of Service (years, months, days):

         Active: 02 10 23
         Inactive: None

 Age at Entry: 20                          Years Contracted: 3

Education Level: 12                        AFQT: 57

 Highest Rate: BM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)    Behavior: 3.33 (3)                OTA: 3.86

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NEM, NDSM, SSDR (3), SASM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

970127:  Reenlisted for three years.

991118:  NAVDRUGLAB, SANDIEGO, reported Applicant’s urine sample, received 991110, tested positive for [THC].


 991121:  Civil Conviction: Driving under influence of alcohol or drugs on 24 Sep 1998 and VC 20002 (A) hit and run. Action: 10 days confinement, summary probation for three years and fin of $1,500.00, attend ACLC Alcohol Program, attend and complete first conviction program.
991123:  Applicant’s statement: [For the record, I have used marijuana at lest once a year for the seven years of my active duty as a service member of the Navy. I historically use marijuana on my birth date every year…. I am an active homosexual and believe that the discovery of my recent drug use has been brought about by a former live-in girl friend D_ N_ whom I began an intimate relationship with in February of 1997… The last of my marijuana usage was on my birthday November 2 nd , 1999.]
991123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct by reason of civilian conviction and by reason of homosexual conduct as evidenced by member’s statement that she is a homosexual or words to that effect.

991123:  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.
991124:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), misconduct by reason of civilian conviction and by reason of homosexual conduct as evidenced by member’s statement that she is a homosexual or words to that effect.

991203:  CNMPC 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 19991220 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 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 her drug use. The Applicant’s allegations, that she was denied assistance and counseling and that she was “forced to test for drug,” do not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The Applicant contends that s he “served 7 hardworking years as a dedicated sailor only to have it stomped out over 1 night of pleasure.” 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 a civilian conviction for driving under the influence and hit and run as well as admissions of homosexual conduct and drug use. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

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 her discharge at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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