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NAVY | DRB | 2005_Navy | ND0500203
Original file (ND0500203.rtf) Auto-classification: Denied


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

ex-AMSAA, USN
Docket No. ND05-00203

Applicant’s Request
The application for discharge review was received on 20041109. 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 20050428. 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. “Discharge was improper because squadron C.O. said they would send me to rehabilitation center for help with my problem. I was discharged without the help promised.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Request Pertaining to Military Records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960528 - 960623  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960624               Date of Discharge: 980206

 Length of Service (years, months, days):

         Active: 01 07 13
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

 Education Level: 12                        AFQT: 72

 Highest Rate: AMSAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 1.00 (1)                OTA: 2.20

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, Marksman M-16A1 Ribbon

 Days of Unauthorized Absence: 10

 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 :

960626:  Retention Warning: Advised of deficiency (fraudulent induction as evidenced by failure to disclose required basic enlistment eligibility information, possession of cocaine 7/85, Palos Verdes, CA, paid $250, 8 weeks diversion classes, 1 year supervised probation, cocaine 2x, 6/84, marijuana, 6x, 12/82-6/84), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
970108:  Applicant to unauthorized absence this date.

970111:  Applicant surrendered from unauthorized absence this date (3 days).
971103:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 971003 to 971010, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 112a: Drug use.
Award: Forfeiture of $525.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

 980105:  Drug and Alcohol Abuse Report: Applicant found to use cocaine 1-3 times per week. Applicant found to be drug dependent. Recommended Level III Treatment.

980109:  Commander, Carrier Group Three, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980206 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 used illegal drugs. The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use and Article 86, unauthorized absence. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. 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. As such, relief is denied.

The Applicant contends his discharge was improper because he never received treatment for his drug dependency. The evidence of record indicates that on the Applicant’s Drug and Alcohol Abuse Report (DAAR) he was determined to be drug dependent by a Naval medical officer and recommended for Level III treatment by the medical officer and his Commanding Officer. The evidence of record is not clear as to whether the Applicant ever received or was offered treatment for his drug dependency. Nevertheless, even if the Applicant was improperly denied the Level III treatment, the NDRB is convinced that such an error would have been procedural in nature and not prejudicial to the Applicant’s separation from active duty or to the characterization of his service. Therefore, if such an error occurred, it would afford the Applicant no relief. There is little doubt to the NDRB that the discharge would have remained the same if such an error had not been made and thus relief based upon such an error 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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 V, Para 502, Propriety .

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

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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