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NAVY | DRB | 2004_Navy | ND04-01344
Original file (ND04-01344.rtf) Auto-classification: Denied


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


ex-ENFA, USNR
Docket No. ND04-01344

Applicant’s Request
The application for discharge review was received on 20040824. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.














PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Enlisted Performance and Evaluation Report, dated November 10, 1992
 Letter of Commendation, dated November 25, 1992
 Department of the Navy Examination Profile Sheet, dated September 1992

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
          Active: None
Period of Service Under Review :
Date of Enlistment: 910305               Date of Discharge: 930105

 Length of Service (years, months, days):
         Active: 01 09 10
          Inactive: 00 00 21
Age at Entry: 31                          Years Contracted: 8

 Education Level: 13                        AFQT: 71
Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.60 (1)    Behavior: 2.80 (1)                OTA: 3.60

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM
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 :

910328:  Applicant briefed on Navy’s policy on drug and alcohol abuse.
910326:          Applicant commences period of active duty under the Active Mariner Program.



910919:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order by consuming alcoholic beverages while in a duty status.
 Award: Forfeiture of $422.00 per month for 1 month, restriction and extra duty for 14 days. Punishment suspended for six months. No indication of appeal in the record.
910925:  Retention Warning: Advised of deficiency (Poor military performance: By wrongfully consuming an alcoholic beverage while in a duty status, and as a result of previous overindulgence of intoxicating liquor, was incapacitated for the proper performance of your duties), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
921007:  NAVDRUGLAB, Norfolk, VA, reports Applicant’s urine sample received on 920914 tested positive for THC.

 921015:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
 Award: Forfeiture of $457.00 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.
921105:  NAVDRUGLAB, Norfolk, VA reports Applicant’s urine sample received on 921023 tested positive for THC.
921118:  Applicant notified of intended recommendation for discharge with a least favorable characterization under other than honorable conditions by reason of misconduct due to drug abuse.
921118:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27b, elected to waive all rights.
921130:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

921222:  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 19930105 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).
The Applicant introduced no decisional issues for consideration by the Board.

 Normally, to permit relief, an procedural 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.

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) on two occasions for violations of Articles 92 and 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 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), effective 15 Aug 91 until 04 Mar 93, 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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