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NAVY | DRB | 2004_Navy | ND04-00699
Original file (ND04-00699.rtf) Auto-classification: Denied


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

ex-AEAA, USN
Docket No. ND04-00699

Applicant’s Request
The application for discharge review was received on 20040325. 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 20041022. 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. “I was not given the chance to have another UA done in a timely manner, (results came back after the 3 days window for a retest had past) I did inquire with the disciplinary chief at the AE School (NATTC).”

 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: USNR (DEP)     011130 - 020218  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 020219               Date of Discharge: 030321

 Length of Service (years, months, days):

         Active: 01 01 03         Does not exclude lost time
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4 (12 months extension)

 Education Level: 11*              AFQT: 62

 Highest Rate: AEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                           Behavior: 2.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 3

*Transcript instead of diploma

 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 :

030130:  Applicant to unauthorized absence 1700, 030130.

030203:  Applicant from unauthorized absence 0700, 030203 (3 days/surrendered).

030213:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 030210, tested positive for cocaine.
030219:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 030203.
         Award: Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
030219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030219:  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.
030220:  Applicant refused rehabilitation treatment.

030228:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030313:  Chief of Naval Education and Training 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 20030321 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for violation of Article 112a of the UCMJ. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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. The Board presumed regularity in the conduct of governmental affairs. Relief denied.

There was nothing in the records, nor did the Applicant provide any documentation to support his claim that he was unfairly denied a retest, or to refute the presumption that his urinalysis was performed correctly. 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 DISCH ARGE 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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