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NAVY | DRB | 2004_Navy | ND04-00853
Original file (ND04-00853.rtf) Auto-classification: Denied


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

ex-ADAA, USNR
Docket No. ND04-00853

Applicant’s Request
The application for discharge review was received on 20040427. 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 20041029. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

 The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation, should read: "MISCONDUCT" vice "DRUG ABUSE." The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I D_ S_ am an alcoholic which got me into a lot of trouble, I returned from a six month deployment and my wife had very surprisingly left me. My divorce and alcoholism put me into a deeply depressed state of mind which cuased me to do some stupid things cuasing my discharge from the navy. The navy put me into the alcohol rehabilitation center which helped me greatly. I’ve now am sober and out of trouble for over six years. Please help me fix my mistakes and upgrade my discharge to honorable. Thank you.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950314               Date of Discharge: 980415

 Length of Service (years, months, days):

         Active: 02 10 22
         Inactive: 00 02 10

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 09 (GED)                          AFQT: 74

 Highest Rate: ADAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.83 (6)    Behavior: 1.66 (6)                OTA: 3.11

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFSM, AFEM, NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

950524:  Commenced 36 months of active duty under the Airman Apprentice Training program.

960701:  NJP for violation of UCMJ, Article 107: Making a false official statement.
         Award: Forfeiture of $509.55 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

970129:  Retention Warning: Advised of deficiency (Disobeying a lawful order, operate a vehicle while drunk and wrongfully appropriate a vehicle for which you were awarded CO’s NJP on 970128), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970129:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order, violation of UCMJ, Article 111: Operate a vehicle while drunk, violation of UCMJ, Article 121: Wrongfully appropriate a golf cart.
         Award: Forfeiture of $505.00 pay per month for 2 months, restriction for 30 days, reduction to E-2. No indication of appeal in the record.

971212:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order.
         Award: Restriction to the limits of Naval Air Station, Jacksonville for 30 days. No indication of appeal in the record.

971218:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 92 Failure to obey a lawful regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980126:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 980115, tested positive for [cocaine].

980210:  Addictions Rehabilitation Clinic Jacksonville, FL Alcohol Abuse evaluation .

         AXIS I: Alcohol Abuse, with physiological dependence
         AXIS II: Personality Disorder NOS (by history)
         AXIS III: Hematochezia
980210:  DAAR indicates cocaine abuse as a result of a unit sweep urinalysis, found dependent, amenable and eligible, recommended for separation via VA hospital.

980225:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment, misconduct due to commission of a serious offense as evidenced by CO’s NJP of 980130 for violation of UCMJ Articles 92 and 112a (Disobeying a Direct order and Wrongful Use of Cocaine), and misconduct due to a pattern of misconduct as evidenced by all disciplinary infractions adjudicated at NJP in your current enlistment.
980303:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

 980320:  Applicant completed Intensive Outpatient Treatment.

980415:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, misconduct due to commission of a serious offense, and misconduct due to pattern of misconduct, that the misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

980429:  Commanding Officer directed Applicant’s discharge with a general (under 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 19980415 with a general (under 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. 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. A General 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 three nonjudicial punishment proceedings for five violations of Articles 92, 107, 111 and 121 of the UCMJ. In addition, there is credible evidence the Applicant used cocaine, violating Article 112a of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his "divorce and alcoholism." While he may feel that his abuse of alcohol and marital problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety 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 any 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his 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 18, effective 12 Dec 97 to 19 May 99, 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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