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NAVY | DRB | 2004_Navy | ND04-00801
Original file (ND04-00801.rtf) Auto-classification: Denied


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


ex-AA, USN
Docket No. ND04-00801

Applicant’s Request
The application for discharge review was received on 20040421. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041008. 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. “My discharge was based on several incidents of intimidation during active duty. I was improperly released by force to accept an O T H or accept court martial.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 AMCROSS message, dated 26 Feb 2002
 E-mail correspondence, dated 12-15 Aug 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR                     940129 - 940201  Rept Acdu
                   USNR (DEP)               990902 - 990907  COG
         Active: USNR                       940202 - 940224  ELS

 Period of Service Under Review :
Date of Enlistment: 990908               Date of Discharge: 020905

 Length of Service (years, months, days):
         Active: 03 00 16 (Does not exclude lost time)
          Inactive: 00 00 03
Age at Entry: 30                          Years Contracted: 4

 Education Level: 12                        AFQT: 36
Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: NMF*

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM (2), SSDR, Letter of Commendation

 Days of Unauthorized Absence: 3
*No marks found in service record
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 :

010526:  Applicant to UA this date.

 010527:  Applicant surrendered from UA this date.
020415:  Applicant to UA this date.
020417:  Applicant surrendered from UA this date.
020429:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample,
received 020424, positive for cocaine.
020512:  Applicant requests and consents to a polygraph examination to determine whether he wrongfully used cocaine.
020529:  Applicant provided an exculpatory polygraph examination. It was the opinion of the examiner that Applicant was not answering truthfully to the relevant questions of the test.

020713:  Applicant refuses inpatient treatment at the Alcohol Rehab Department, Naval Station Norfolk.
020711:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 112a: Wrongful use of cocaine.
Award: Forfeiture of $657.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
020722:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s Nonjudicial Punishment of 020711
020809:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
020822:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse
020825:  COMCARGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
020905:  Applicant determined to be drug dependent by medical officer. Offered a minimum of 30 day inpatient treatment at a Level III inpatient treatment facility. Applicant refused treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020905 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. 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 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. Regardless, the Applicant contends his discharge was the result of unlawful intimidation. There exists no evidence in the record, nor has the Applicant provided any evidence to support his contentions of inappropriate behavior by his chain of command. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive and substantial evidence to the contrary. Given the absence of such evidence, this Board presumed that Applicant’s discharge was proper and equitable in all respects. 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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