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NAVY | DRB | 2004_Navy | ND04-00913
Original file (ND04-00913.rtf) Auto-classification: Denied


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

ex-SMSN, USN
Docket No. ND04-00913

Applicant’s Request
The application for discharge review was received on 20040512. 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 20041103. 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 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I came back to the service after 3 years civilian life. My first enlistment I received 4.0 marks all the way thru my enlistment. I live a clean life. I know better, than to go to court martial. I took the charge and got out. I’m asking you to strongly consider upgrading my discharge status so I can move on with my life. 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)     890323 – 890406  COG
         Active: USN                        890407 - 940204  HON

 Period of Service Under Review :
Date of Enlistment: 970116               Date of Discharge: 970502

 Length of Service (years, months, days):

         Active: 00 03 17
         Inactive: None

 Age at Entry: 28                          Years Contracted: 2 (24 months extension)

 Education Level: 12                        AFQT: 51

 Highest Rate: SM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: *NOB                 Behavior: NOB             OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Not observed

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

970215:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 970210, tested positive for [THC].
970318:  NJP for violation of UCMJ, Article 112a: Wrongful use of an undetermined amount of marijuana as confirmed in urinalysis testing by Naval Drug Laboratory, San Diego, California.
Award: Forfeiture of $400.00 pay per month for 2 months, restriction for 60 days, reduction to E-3. No indication of appeal in the record.
970407:  Alcohol Treatment Facility (ATF) Evaluation: Applicant participated in a thorough counselor screening to determine if substance abuse problem existed and to recommend an appropriate level of treatment. Subsequent to the counselor screening, Applicant was evaluated by a Licensed Independent Practitioner (a physician) and does not meet criteria for a diagnosis of drug or alcohol abuse/dependence.

970407:  DAAR indicates marijuana abuse as a result of a unit sweep urinalysis, found not eligible for treatment, not dependent, recommended for separation not via VA hospital.

970408:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all incidents of drug abuse in your current enlistment.
970408:  Applicant advised of rights and having elected 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.
970409:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970414:  Chief of Naval Education and Training authorized 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 19970502 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) 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. Relief denied.

 The following is provided for the edification of the Applicant. 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, and certification of non-involvement with civil authorities.

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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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