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NAVY | DRB | 2004_Navy | ND04-01057
Original file (ND04-01057.rtf) Auto-classification: Denied


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


ex-CECA, USN
Docket No. ND04-01057

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 honorable. The Applicant requests a documentary record discharge review. The Applicant listed a private representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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. Discharged in absentia.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 1. “Please review the attached documents. I used drugs one time to try and manage the grief I was feeling due to my father’s death. I was sent to a drug counselor, and he told the administration board that I did not have a drug problem. I was not offered treatment, counseling or any other options, other then a discharge of “Other Than Honorable.” I feel this is unfair. I am working full time and have not drugs since 1995.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
BCNR letter, dated October 9, 2003
 Cover letter to assessment from Area Substance Abuse Council, dated January 23, 2004 (3 pages)
 Enlisted Performance Evaluation Report, dated February 1, 1994
Enlisted Performance Evaluation Report, dated January 25, 1995
 Letter of Commendation for October 3 to December 24, 1994
 Letter of Appreciation for October 1, 1994 to January 14, 1995
Accession information, dated July 7, 1992 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910925 - 920706  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 920707               Date of Discharge: 960202

 Length of Service (years, months, days):
         Active: 03 06 26 (Does not exclude lost time)
          Inactive: None
Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 46
Highest Rate: CECN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.90 (2)    Behavior: 3.90 (2)                OTA: 3.90

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR, LoA, LoC

 Days of Unauthorized Absence: 18
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 :

930617:  Retention Warning: Advised of deficiency (UA, failed to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
940927:  Counseling: Advised of deficiency (late for quarters on 940927), notified of corrective actions and assistance available.

 941026:  Counseling: Advised of deficiency (morning quarters, was found in room getting ready for quarters), notified of corrective actions and assistance available.

941108:  Counseling: Advised of deficiency (Not at PT, after PT was found still sleeping in his room), notified of corrective actions and assistance available.

950511:  Counseling: Advised of deficiency (unauthorized absent from 0500, 950511 for PRT measurements at CBC gym.), notified of corrective actions and assistance available.

950617:  Counseling: Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.

950822:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 950811, tested positive for THC.

950825:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 950807.
         Award: Forfeiture of $478 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
950830:  DAPA: Applicant does not meet criteria for psychoactive abuse/dependence.
950908:  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 all drug incidents in your current enlistment.
950916:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
951005:  CAAC found Applicant not psychologically dependent on marijuana.
951213:  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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960102:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
960116:  Applicant to unauthorized absence 0700, 960116.
960125:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
960202:  Applicant discharged in absentia 0800, 960202 (18 days).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19960202 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: Normally, to permit relief, a error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.
The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for violation of Article 112a of the UCMJ, and adverse counseling entries on other occasions. 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 stated that he did not receive treatment. The Applicant was found not psychologically dependent on marijuana, and the Applicant does not meet the criteria for psychoactive abuse/dependence. Relief on this basis is not warranted.
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 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:
                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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