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NAVY | DRB | 2004_Navy | ND04-01051
Original file (ND04-01051.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND04-01051

Applicant’s Request
The application for discharge review was received on 20040615. 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.

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, 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. “To whom it may concern. My rank in the military when I was discharged was E-4. I was a Petty Officer. I completed the AETC program. I had no other violations on my record while enlisted. I tested positive for THC while onboard the Philippine Sea. My level was 15 points and I understand that it was the lowest point possible to test positive. I realize that I made a huge mistake. I wasn’t made aware by my command about all of the options that I had after I tested positive in fact after I went to Captain’s mast I was officially discharged 2 days later. I ask you to review the evidence and please change the conditions of my discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001218 - 001227  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 001228               Date of Discharge: 030110

 Length of Service (years, months, days):

         Active: 02 00 13
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (24 month extension)

 Education Level: 12                        AFQT: 84

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BER, NUC

 Days of Unauthorized Absence: None

 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 :

030109:  NJP for violation of UCMJ, Charge I: Violation of the UCMJ, Article 86, - Unauthorized Absence, Specification 1: In that ET3 K_ J_ R_, USN, USS Philippine Sea (CG-58), on active duty, did, on or about 1730, 23 November 2002, without authority, absent himself from his place of duty at which he was required to be, to wit: USS Philippine Sea (CG-58), located at Mayport, Florida and did remain so absent until on or about 0900, 24 November 2002.
 Specification 2: In that ET3 K_ J_ R_, USN, USS Philippine Sea (CG 58), on active duty, did, on or about 0500, 4 December 2002, without authority, absent himself from his place of duty at which he was required to be, to wit: USS Philippine Sea (CG 58), located at Mayport, Florida and did remain so absent until on or about 0545, 4 December 2002.
 Charge II: Violation at the UCMJ, Article 121 – Larceny.
 Specification: In that ET3 K_ J_R_, USN, USS Philippine Sea (CG-58), on active duty, did, at the Navy Exchange, Mayport, Florida, on or about 1700, 5 December 2002, steal cigarettes and a bottle of cologne, of a value of about $48.00, the property of the Navy Exchange.
Charge III: Violation of the UCMJ, Article ll2a - Use of a Controlled Substance – Marijuana, Specification: In that, ET3 K_ J_ R_, USN, USS Philippine Sea (CG 58), on active duty, at or near Jacksonville, FL, on or about 27 December 2002, wrongfully use marijuana.
Found guilty of all charges and specifications [Extracted from the CO, USS PHILIPPINE ltr 9 Jan 03].
030109:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030109:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030109:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. “ETSN R_ [Applicant] was found guilty at Captain’s Mast 9 January 2003 for Violation of the UCMJ, Article 86 (Unauthorized Absence), Article 121 (Larceny) and Article 112a (Use of a Controlled Substance). ETSN R_ is being processed for discharge for misconduct – drug abuse. Recommend approval of an administrative separation for ETSN R_ with an Other Than Honorable characterization of service.”
030110:  COMCRUDESG TWELVE approves discharge for Applicant. Applicant to be discharged with characterization of Other Than Honorable, narrative reason of misconduct.

Missing parts of the Applicant’s service record book

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030110 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. The Applicant states that he “had no other violations on my record while enlisted.” 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, thus substantiating the misconduct for which he was separated. Further, the Applicant was awarded NJP for violation of the UCMJ Articles 86 and 121. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why 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.

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. Relief denied.

The Applicant contends that he “wasn’t made aware by my command about all of the options that I had after I tested positive.” The record contains no evidence of any wrongdoing by the government in the administrative discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular 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. 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), 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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