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NAVY | DRB | 2004_Navy | ND04-00421
Original file (ND04-00421.rtf) Auto-classification: Denied


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

ex-PNSA, USN
Docket No. ND04-00421

Applicant’s Request
The application for discharge review was received on 20040114. 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.

Decision

A documentary discharge 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, 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. “A change in my discharge status from “other then honorable” to General under honorable conditions is warranted for the following reasons:

1) I was accused of a violation of UCMJ Art 112a, wrongful use of a controlled substance. I have enclosed a copy of the Specimen Custody Document Drug Testing performed on 3 September 2002 with a non-positive finding reported. Please note that on the last page of the report only one specimen #3 is documented as positive. The specimen is for SSN [deleted]. This is not my Social Security Number nor my specimen number.

2) Please find enclosed a copy of “Addictions Rehabilitation Naval Medical Center Portsmouth” form. This record is dated 12 September 2002 and signed by D. M_, LT/MSC/IJSNR. LT. M_’s assessment reveals “no drug dependency”

3) Upon separation from the Navy, a civilian employer tested me for numerous drugs and all findings were non-positive. Copy of test record enclosed.

It is my belief that these records that repeatedly reveal non positive drug testing results provide grounds for changing my discharge status.

In addition, I have enclosed documented statements from the witnesses. These statements contain conflicting and contradictory information.

SK3 J_ R_, in a statement dated 3 September 2002 , stated “ HT3 R_ got a small amount of marijuana from Valley and rolled a cigarette.” CTOSN T_ F_, in a statement dated 3 September 02 stated “ HT3 R_ pulled a marijuana cigarette out of his pocket and lit it.” As one can see, these statements do not agree.

Also, a review of CTOSN F_’s statements include instances where facts are not entered. In response to questions, she states “ I think he ( PNSN V_) meant this or that. Do we care what someone thinks? In something as important as this issue, I would ask that only facts be considered. Her thoughts may not be factual.

I must ask why NJP was issued to myself for the accusations, when SK3 R_ admits to previously smoking marijuana ,while in the Navy, in her statements and CTOSN F_ states that SK3 R_ smoked marijuana and no NJP was awarded. It is my understanding that SK3 R_ continued to serve in the Navy and did not receive an ‘other than honorable discharge.’

I respectfully ask that the enclosed statements and documents be reviewed and consideration be given to changing the status of my discharge.

Respectfully,

A_ M. V_”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Specimen Custody Document w/ fax cover sheet dtd 3 Sep 2002
Urinalysis Register dtd 3 Sep 2002
Msg dtd 17 Sep 2002
Medical Record except dtd 12 Sep 2002
I & O Medical Center drug testing record dated 14 Nov 2002
Statement of J_ R_, SK3, dtd 3 Sep 2002
Statement of T_ F_, CTOSN, dtd 3 Sep 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010110 - 010124  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010125               Date of Discharge: 021101

 Length of Service (years, months, days):

         Active: 02 09 07
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 63

 Highest Rate: PNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.75

Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

010830:  NJP for violation of UCMJ, Article 92: Underage drinking.
         Award: Forfeiture of $100 per month for 1 month(s), restriction for 30 days. No indication of appeal in the record.

011009:  Counseling: Advised of deficiency (exceeding body fat standards), notified of corrective actions and assistance available.
020830:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession etc., of controlled substances (Marijuana).
Award: Forfeiture of ½ pay for 2 month(s), restriction and extra duty for 45 days, reduction to E-2.
010831:  Retention Warning: Advised of deficiency (underage drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 020909:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct as evidenced by NJPs of 4 Sep 2002 and 30 Aug 2001 and violation of NAVPES 1070/613 dtd 30 Aug 2001.

020911:  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.

020912:  Medical evaluation found:
         AXIS I: Alcohol Abuse
         Recommendations: Not drug dependant, recommended Level I for Alcohol abuse.
020913:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and Pattern of Misconduct. Commanding Officer’s comments: [As evidenced in ITC B_’s statement, one of my Chief Petty Officers implicates PNSA V_ as using marijuana on another occasion. The evidence proved overwhelmingly convincing that PNSA V_ ahas in fact used marijuana while on active duty, attached to OSCAR AUSTIN, leaving me with only one option- expediting mandatory separation proceedings.]

021023:  COMCARGRU TWO 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 20021101 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. Neither the documents and statements submitted by the Applicant nor the evidence of record demonstrates that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant was diagnosed an Alcohol Abuser and not drug dependant on 12 Sep 2002. However, this does not mitigate the Applicant’s findings of guilt for illicit drug use and Commanding Officer’s Nonjudicial Punishment and his subsequent administrative separation. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief denied.

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. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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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