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NAVY | DRB | 2004_Navy | ND04-00782
Original file (ND04-00782.rtf) Auto-classification: Denied


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

ex-ABEAN, USNR
Docket No. ND04-00782

Applicant’s Request
The application for discharge review was received on 20040408. 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 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 20041112. 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. “My discharge was unequitable, because after 72 months (of service) of no adverse action’s I should have been offered drug & alcohol counseling & mental counseling for stress. I als feel the need for medical prescription’s that were issued to me show’s the level of stress and stressed induced headaches were part of the reason for my adverse actions. I respectfully request a “general under honorable conditions”, in order to restart my life, again thank you”
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)     860703 - 860707  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 860708               Date of Discharge: 921013

 Length of Service (years, months, days):

         Active: 06 03 06
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (32 months extension)

 Education Level: 12                        AFQT: 51

 Highest Rate: ABE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.62 (7)    Behavior: 3.25 (7)                OTA: 3.57

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR(2), SSDR, BATTLE”E”, GCM, NDSM

 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 :

910508:  NJP for violation of UCMJ, Article 128a: Assault, consummated by a battery on or about 1952, 910430, violation of UCMJ, Article 109: Destruction of property other than military property of the United States, waste, spoilage, on or about 1952, 910430.
         Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction for 7 days, extra duty for 45 days (suspended for 6 months), reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
920807:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc, of a controlled substance.
Award: Forfeiture of $521.70 pay per month for 2 months, restriction to NAS Chase Field, Beeville, Texas for 60 days, reduction to E-3. No indication of appeal in the record.
920821:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your NJP of 920807.
920824:  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.
920902:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NJP of 920807.

920928:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
921013:  Applicant accepted drug rehabilitation in-patient treatment at a VA hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921013 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. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. While the Applicant may feel that the stress he was under should mitigate his misconduct, the evidence of record, to include review of the Applicant’s medical records, does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant was offered and accepted drug rehabilitation treatment at a VA facility upon discharge. The offer of treatment at a VA facility satisfied the Navy’s obligation to treat the Applicant’s substance abuse problem. Relief denied.

 The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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 the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.














Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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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