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NAVY | DRB | 2004_Navy | ND04-01086
Original file (ND04-01086.rtf) Auto-classification: Denied


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

ex-DC3, USN
Docket No. ND04-01086

Applicant’s Request
The application for discharge review was received on 20040622. 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 review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Applicant’s issues, as stated on the application:

1. “-My discharge was inbequitable because it was based on one isolated incident in 32
months of service with no other adverse action.
-Steroids and drug paraphenelia in possession were not mine because a shipmate asked to stow package in my locker.
-I received no legal advice or counsel from ships legal officer ENS S_ or legalman LN1 D_.
-I was not afforded opportunity to appeal the Captains NJP in the allotted 5 day grace period.
-Tested negative for steroids and drugs on 25MAR02 and 26MAR02.”

Applicant’s Remarks: “My discharge from the Navy was a very unfortunate incident for me. The steroids found in my locker were nat mine. A shipmate asked to stow a package in my locker and I agreed without knowing what the contents were. I explained this to my chain of command and master of arms but I received no legal counsel from the ships legal officer or legalman. I was not afforded the opportunity to appeal the captains NJP in the 5 days allowed because of being held under protective custody on the ship for 12 days. I have never tested positive for any drugs during my enl;istment or after my discharge. I respectfully request that board reviuew these facts, upgrade my discharge to general under honorable conditions, and change my reenlistment code to a RE-1A so I can continue my career in the armed forces.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Drug specimen collection report dated, November 20, 2002 and August 28, 2002. (2 applications)
Specimen custody document dated, March 25, 2002
Yahoo email from ENS J_ S_, Security/Legal Officer USS Blue Ridge, dated, June 25, 2002
Letter of reference from R_ E_ V_, Interior Communications Electrician Senior Chief Petty Officer, dated April 05, 2002.
Letter of Commendation from J_ T_ C_, LT USN, Director of Hull Schools Division, dated February 2000.
Memorandum from Director, Hull Division, Service School command, dated February 18, 2000.
Evaluations (5 pages)
Applicant’ s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990621 - 990907  COG
         Active: None
                 
Period of Service Under Review :
Date of Enlistment: 990908               Date of Discharge: 020508

 Length of Service (years, months, days):

         Active: 02 08 01
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (12 month extension)
Education Level: 12                        AFQT: 87

 Highest Rate: DC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (5)    Behavior: 3.20 (5)                OTA: 3.69

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), NMCOSR (2), NDSM

 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 :

020326:  Applicant was informed of the military requirement for drug screening for possible drug dependence.
020401:  NJP for violation of UCMJ, Article 112a(3 Specs): Wrongful possession of a controlled substance, steroids, wrongful use of a controlled substance, steroids, and wrongful introduction of a controlled substance, steroids onto a navy vessel.
 Specification 1: In that DC2 K_ D_ L_ (Applicant), U. S. Navy, USS BLUE RIDGE (LCC-19), on active duty, did, on board USS BLUE RIDE (LCC-19), on or about 020326, wrongfully possess some amount of steroids, a controlled substance, while on board a vessel, used by the armed forces or under the control of the armed forces, to wit: USS BLUE RIDE (LCC-19).
Specification 2: In that DC2 K_ D_ L_ (Applicant), U. S. Navy, USS BLUE RIDGE (LCC-19), on active duty, did, on board USS BLUE RIDGE (LCC-19), between 020119 and 020324, wrongfully introduce some amount of steroids, a controlled substance, onto a vessel, aircraft, vehicle or installation used by the armed forces or under the control of the armed forces, wit: USS BLUE RIDGE (LCC-19).
Specification 3: In that DC2 K_ D_ L_ (Applicant), U. S. Navy, USS BLUE RIDGE (LCC-19), on active duty, did, on various occasions between 020119 and 020324, wrongfully use steroids, a controlled substance, while on board a vessel used by the armed forces or under the control of the armed forces, to wit: USS BLUE RIDGE (LCC-19) while underway, violation of UCMJ, Article 92(Spec 1): Violating a General regulation, wrongfully possessing drug paraphernalia.
Specification 1: In that DC2 K_ D_ L_, U. S. Navy, USS RIDGE (LCC-19), on active duty, did, on board USS RIDGE (LCC-19), on or about 020325, violate a lawful general regulation, to wit: SECNAVINST 5300.28C dated 990324, by wrongfully possessing drug paraphernalia.
         Award: Forfeiture of $839.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
020401:  Applicant affirmatively declines right to appeal NJP to higher authority.

 020420:  Applicant notified of intended recommendation with a least favorable characterization of under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse.
020420:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
020424:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse. Commanding Officer’s comments (verbatim): ……. DC3 L_ (Applicant) total disregard for the Navy’s drug policy, as evidenced by his wrongful use and possession of steroids, his introduction of steroids onto the USS BLUE RIDGE (LCC-19) and his possession of drug paraphernalia, constitutes a significant departure from the conduct expected of members of the naval service. Therefore, I strongly recommend that DC3 L_ (Applicant) be administratively separated by reason of misconduct due to commission of a serious offense and drug abuse, and that his characterization of service be Under Other Than Honorable .

020507:  COMPHIBGRU authorize 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 20020508 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, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. There is credible evidence in the record that the Applicant possessed and introduced illegal drugs aboard a vessel of the United States Navy. Mandatory processing for separation is required for sailors who abuse illegal drugs. Per Naval regulations, possession and introduction of illegal drugs is considered “abuse.” Separation under these conditions generally results in characterization of service under other than honorable conditions. The Board found no indication in the record that the Applicant was inequitably or improperly denied legal counsel or the opportunity to appeal. The evidence of record indicates that the Applicant affirmatively waived both his right to legal counsel and his right to appeal NJP. The Applicant’s allegations, that the illegal drugs found in his possession aboard the USS BLUE RIDGE (LCC 19) were no his, do not refute the presumption of regularity in this case. 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 sufficient 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 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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