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NAVY | DRB | 2004_Navy | ND04-01009
Original file (ND04-01009.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND04-01009

Applicant’s Request
The application for discharge review was received on 20040608. 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 discharge review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond.

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 – 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. “RESPECTFULLY REQUESTING CHANGE OF DISCHARGE FROM OTHER THAN HONORABLE DISCHARGE TO GENERAL/UNDER HONORABLE CONDITIONS.”

2. “Enclosed is my Application for the Review of Discharge or Dismissal from the Armed Forces of the United States. On April 12, I was other than honorably discharged from the United States Navy. At that time, I was notified that, after a six-month period, my other than honorable discharge would then be changed to general/under honorable conditions discharge.
Recently I contacted the Veterans Administration regarding any benefits I was entitled to and discovered that the above change had not been made. I would, therefore, respectfully request that this change be reviewed and a general/under honorable conditions discharge issued.
After reviewing my service record, you will find that, other than the one particular incident that precipitated my discharge, my time served was honorable.”

 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)     881215 - 881221  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 881222               Date of Discharge: 910412

 Length of Service (years, months, days):

         Active: 02 03 22
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)             Behavior: 2.90 (2)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, JSAM,

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 :

881122:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 910109:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 901223, tested positive for THC.

910123:  Drug and Alcohol evaluation: On 910104 from 0830 to 1234, SN T_ L_ B_ (Applicant) was interviewed by BMCS (SW) C_ J_ M_, Navy Drug and Alcohol Counselor. SNM was referred to the CAAC by STG1 S_ E_, Drug and Alcohol Program Advisor, as a result of a self referral for LSD use in conjunction with an NCIS investigation.
         SNM arrived on time and was cooperative, well kept, and appropriately dressed in the uniform of the day. SNM admitted to use of LSD and marijuana on five separate occasions. He acknowledged a clinical symptom of drug abuse, knowing it causes other problems. SNM also reported a heavy alcohol use pattern, i.e. six to eight 12oz beers and two to three shots of liquor daily. He acknowledged clinical symptoms of alcohol dependence: using more than intended, unsuccessful efforts to control use, uses knowing it causes other problems, excessive time involvement, tolerance, withdrawal symptoms, and medicating withdrawal. SNM’s medical and service records reflect that his alcohol and drug use has not resulted in previous social or legal problems or incidents of misconduct. SNM denied previous treatment or rehabilitation for alcohol or drug abuse. In June 1989, SNM participated in NADSAP at Anacostia Naval Station for primary prevention education. On 910117, CAAC was notified that SNM had tested positive for THC on a urinalysis conducted prior to the screening.
         Diagnosis: Based on this information, SNM appears to meet the clinical diagnostic criteria for drug abuse and alcohol dependence, established in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition, Revised.
         Recommendation: SNM should be processed for separation. The Medical Assessment Form is provided to assist in obtaining a medical evaluation and should accompany SNM to a medical evaluation established by your command. If he (Applicant) is diagnosed as alcohol and/or drug dependent, contact COMNAVMILPERSCOM (NMPC-83) for guidance concerning rehabilitation through the Veterans Administration. If command decides to retain SNM in the military we recommend CAAC Level II non-residential counseling in the interim of Level III residential treatment.

910131:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 910123, tested positive for THC.
910205:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 910128, tested positive for THC.

910211:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 910205, tested positive for THC.

910213:  Medical Assessment: Not drug dependent and is alcohol dependent. Has herniated disc. No heavy exercise, no lifting, no running. No Detox is required.

910213:  Alcohol and Drug dependency screening: Provisional diagnosis is 1. Alcohol dependant 2. Drug abuser.
         Evaluation: Member experimental drug use, not dependant. Alcohol Dependant, history of increasing tolerance, blackouts and binges.
         Recommendation: Increase from Level II to Level III. No Antabuse, no Detox.

910227:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 910221, tested positive for THC.
910308:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $400.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

910315:  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 the current enlistment.

910319:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 910313, tested positive for THC.
910319:  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. Applicant did not object to separation.

910321:  Drug and Alcohol Abuse Report: During a random drug test, the Applicant tested positive for abuse of marijuana on or about 901219 ashore-off duty.
         CAAC found Applicant not dependent and not eligible for counseling and rehabilitation.
 Recommendation: Separation from service not via VA Hospital.
          Physician (M.D.) found Applicant not dependent.
 Recommendation: Level III treatment.
910327:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in current enlistment. Commanding Officer’s comments (verbatim): SA B_ (Applicant) showed positive on a random sample as reported in NAVDRUGLAB, Norfolk, VA. He was placed on a surveillance program which resulted in the other positive screenings. In addition, he was under investigation by NIS for use prior to receiving the positive notifications. SA B_ (Applicant’s) clear use and disregard for Navy policy is demonstrated over several months. Desired disciplinary action has been completed and it is strongly recommended he be discharged with an OTH characterization as soon as possible.

910403:  CNMPC 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 19910412 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).

Issues 1-2: The Applicant states, “ other than the one particular incident that precipitated my discharge, my time served was honorable.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use and six positive urinalysis for THC, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

The Applicant states that he was told that after six months he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. 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. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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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