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NAVY | DRB | 2005_Navy | ND0500770
Original file (ND0500770.rtf) Auto-classification: Denied


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

FOR OFFICIAL USE ONLY

ex-BTFN, USN
Docket No. ND05-00770

Applicant’s Request
The application for discharge review was received on 20050405. The Applicant requests characterization of service received at the time of discharge changed to general/under honorable conditions and the reason for the discharge changed to JFU Positive Urinalysis. 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 20050811. 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“In January 1993, I transferred to a shore duty station in Houston, Texas with the original intent to be close to a dependent child whose mother died in 1989. During the time period between January to August 1993 I confided with the unit DAPA that there was a problem with a residing family member that used drugs. Subsequently, I tested positive for controlled substance, cocaine. I explained to the Commanding Officer that I took full responsibility for putting myself into such a compromising position and I was willing to submit to a Drug/Alcohol Program as not to detract from the image of the Navy. Now, to date, I have research the meaning of my separation code and found it amounts to the equivalent of a drug dealer. I feel my discharge was inequitable because it was based on the isolated assumption of one urinalysis test that showed positive during over 77 months of continuous service with no other adverse action. I respectfully request a Record Review for possible upgrade in General discharge status, and narrative more adequate to the incident.”

REMARKS: I am currently a Detention Officer with the Smith County (Tyler, Tx) Sheriff Dept. I have been in Criminal Justice for ten years. I have never had any misdemeanor of felony charges in my life related to drugs.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Certificate of Military Service
TAD Travel Orders
Notification of Administrative Board Procedures Action (2 pages)
Statement of Awareness and Request for, or Waiver of Privilege (2 pages)
Commanding Officer’s Recommendation for Administrative Separation (2 pages)
Copy of Detention Officer Identification Card


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860815 - 860818 
         Active: USN                        860819 - 900321  HON

 Period of Service Under Review :
Date of Enlistment: 900322               Date of Discharge: 931101

 Length of Service (years, months, days):

         Active: 03 07 08                  (Total service 07 01 11)
         Inactive: None

 Age at Entry: 34                          Years Contracted: 6

 Education Level: 13 1/2                    AFQT: 85

 Highest Rate: BT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.24 (5)    Behavior: 3.28 (5)                OTA: 3.56 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NP Marksman, GCM, SASM(w/bronze star), CGSOR, SSDR

 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 3630620.

 Chronological Listing of Significant Service Events :

900322:  Reenlisted at FTC Norfolk, VA for 6 years.

9111XX:  “Evaluated as alcohol abuser in November 1991 following his second Driving While Intoxicated”. CAAC evaluation 930924.

920611:  Applicant placed on weight control program.

930908:  NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 930830, tested positive for [cocaine].

930910:  NJP for violation of UCMJ, Article 112a: On or about 930826 wrongfully use cocaine.
         Award: Forfeiture of $620.00 pay per month for 2 months (suspended for 6 months), reduction to E-4. No indication of appeal in the record.
930910:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. If separation is approved by the Commander, Naval Military Personnel Command it will result in discharge and the characterization of your service may be Other Than Honorable.

930910:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. The Applicant did not object to the separation.

930915:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930922:  Counseling and Assistance Center, Preliminary Screening, resulting from positive urinalysis for cocaine. Conclusion; appears to be alcohol dependent.

930922:  Medical evaluation for drug and alcohol abuse indicates alcohol dependence, polysubstance abuse (LSD, Cocaine, Cannabis) now in remission, nondependent. Not eligible for Level III treatment, eligible for VA treatment following separation.

930923:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930924:  Director of Counseling And Assistance Center, Drug and Alcohol Evaluation. Applicant is considered to be psychologically dependent on marijuana and alcohol and an abuser of hallucinogens and cocaine.

931101:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931101 under other than honorable conditions for misconduct due to drug abuse (A). 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 (B and C).

 Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. After a thorough review of Applicant’s records the Board discovered no impropriety or inequity. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Nonjudicial punishment (NJP) for a violation of UCMJ Article 112a (wrongful use of a controlled substance) marred the Applicant’s service record, thus substantiating the misconduct for which he was separated. There is credible evidence in the record that the Applicant used illegal drugs. 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. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service of under other than honorable conditions. Relief denied.

The Applicant contends his narrative reason for separation equates to that of a drug dealer and requests it changed to code JFU – Positive Urinalysis. For the edification of the Applicant, the JFU separation code is used only for erroneous entry. The summary of service clearly documents that misconduct due to drug abuse was the reason for the Applicant’s discharge. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Accordingly, the Board determined that the assigned separation code was proper. Relief denied.

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 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 credible evidence of a substance free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant stated, “I have never had any misdemeanor or felony charges in my life related to drugs”. He also provided TAD travel orders, 6 pages of documentation regarding his separation processing and a copy of his detention officer identification card. Based on insufficient evidence and lack of sufficient post service factors, 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, 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 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 .

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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