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NAVY | DRB | 2005_Navy | ND0500168
Original file (ND0500168.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00168

Applicant’s Request
The application for discharge review was received on 20041103. 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 20050201. 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. “There was no drug abuse, and respectfully request the change or correction of OTH to General.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Travel Certificate
Letter of Response from W_ F_, Head, Navy Alcohol and Drug Abuse Prevention Program dated April 4, 2001
Urinalysis History Data
Applicant’s DD Form 214 (2)
Notification of Administrative Separation/Statement of Awareness


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     020102 - 020106  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 020107               Date of Discharge: 030127

 Length of Service (years, months, days):

         Active: 01 00 21
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*        Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: None

*No Marks made available for review

 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 :

021219:  NJP for violation of UCMJ, Article 112a: Possession of a controlled substance.
Award: Forfeiture of $578.00 pay per month for 2 month, restriction for 60 days, reduction to E-1. No indication of appeal in the record.
030110:  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.
030110:  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.
030115:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030127:  Commander, Naval Surface Group, Pacific Northwest authorized 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 20030127 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 existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. There is credible evidence in the record that the Applicant possessed illegal drugs by virtue of her nonjudicial punishment for violation of UCMJ Article 112a. Under applicable regulations, drug abuse is defined to include drug possession. Mandatory processing for separation is required for sailors who abuse illegal drugs, including those who merely possess illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. A review of the record reveals the Applicant permitted two shipmates to purchase marijuana while riding in the car she was driving. She allowed them to smoke the marijuana while in the car and was later stopped by police officers with some marijuana still remaining in the car. Despite these facts, the Applicant contends that she committed no misconduct by reason of drug abuse. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she did not possess the illegal drugs that were discovered in the car. The facts of the case suggest she exercised sufficient dominion and control over the vehicle as to make her legally responsible for the contraband nature of any of its contents. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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 . 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 5420.174D 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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