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NAVY | DRB | 2005_Navy | ND0500782
Original file (ND0500782.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00782

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 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:

“To look good for employment & to get into security or police force.”
Applicant’s remarks , as stated on the application :

"When I joined the military, I wanted to be an aviation electronic tech. During boot camp, a counselor towards the middle of boot, ask if it was the rate I wanted. I changed it to undesignated airman. Orders got messed up to seaman undesignated stationed in Japan. After boot, I was sent to T.H.O. where I was treated like a prisoner, a chief, w/red robe in charge at the time, said even though I graduated boot, that we were still in boot. 3½ weeks there, waiting for my orders of being an undesignated airman stationed in Norfolk. While in boot, during battle stations I realized I was having back problems. My theory was on the issued boots, which made me loose my arch in my right foot which threw my back out of alignment in which lead to me having scoliosis. After “A School” I was finally stationed in Norfolk. For about 4-6 month I was wondering where my sign-on bonus was. Come to find out, I was being Overpaid . In order to receive my bonus, I had to repay their mistake.

My back problem cont. to affect me worse since being stationed upon an aircraft carrier went to medical numerous times. They were not helping me, basically telling me that I was fine & the pain I was in was my imagination. So I went to a civilian cyropractor which told me from my x-rays, that my spine curved to the right, and between lower lumbar 3&4 there is possibly a disc bulge or my nerve resting comfortably out of socket, which lead to my discomfort. I took the x-rays to show the medial personnel they said, "that they could not use any x-rays from the civilian world. Didn’t even glance at it. So they decided now, to take x-rays of me at the time. I felt like they didn’t care. So for me now I decided it was time for me to get out. I went UA for 16 days, turned myself into a Naval Psycho Ward. Got released back to my command gave me my I.D. card back, decided to go UA again for 29 days & 6 hours I smoked weed for the 1st time in my life knowing that I would be discharged -- while all the U.A.’s I had a close friend who was also stationed on G.W. followed did the same as me, UA & smoked. He was on restriction for 45 days. Where I was sent to the brig, for 25 days. Then served 45 days restriction. To me, I was discriminative from my chain of command. Never, before this happen ever gotten into any trouble. Got awards for Spirit Award March 01. Did my job, which I was working in an AE shop like I wanted from the start. I would of stayed full 4 yrs if all this hasn’t started.



Also, between the 1st & sec U.A. I was told to take the 3rd class AE test. I did so, not studying at all nor even care, cause I knew what my plan was to get out. I guessed on every questioned, and still manage to get E-4 AE3. The Navy was a great experience till I got into trouble, made me a better man today. Thank you for taking the time to go over my issues, & God Bless."


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Appointment to Airman
Service medical documents (31 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990427 - 990511  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990512               Date of Discharge: 010825

 Length of Service (years, months, days):

         Active: 02 03 14 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)              Behavior: 2.0 (1)                 OTA: 3.17

 Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized: Navy ”E” Ribbon, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon

 Time Lost:
Days of Unauthorized Absence: 48
 Days of Confinement: 25


 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 :

990427:  Enlistment waiver granted for Chart ”C” possession of marijuana.

010402:  Applicant to unauthorized absence from USS GEORGE WASHINGTON (CVN 73) at 1000 on this date.

010421:  Applicant from unauthorized absence from USS GEORGE WASHINGTON (CVN 73) at 0050 on this date (19days/surrendered).

010503:  Applicant to unauthorized absence from USS GEORGE WASHINGTON (CVN 73) at 0600 on this date.

010601:  Applicant from unauthorized absence from USS GEORGE WASHINGTON (CVN 73) at 0625 on this date (29days/surrendered).

010628:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86. (2 Specifications):
         Specification 1: Unauthorized absence from unit, to wit: USS GEORGE WASHINGTON (CVN 73) from on or about 010402 to on or about 010421 (19days/surrendered);
 Specification 2: Unauthorized absence from unit, to wit: USS GEORGE WASHINGTON (CVN 73) from on or about 010503 to on or about 010601 (29days/surrendered).
         Finding: to Charge I, and specifications 1 and 2 thereunder: guilty.
         Sentence: Confinement for 30 days, forfeiture of $694.00 pay per month for 1 month, reduced to E-1.
         CA action 010727: Sentence approved and ordered executed.
010628:  Applicant to confinement at Naval Brig, Norfolk, VA.

010629:  NAVDRUGLAB JACKSONVILLE FL reported Applicant’s urine sample, received 010626, tested positive for THC.

010719:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse.
010720:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010722:  Applicant released from confinement.

010808:  NJP for violation of UCMJ, Article 112a: Did at or near the vicinity of Hampton Roads Area, Virginia, on or about 010601, wrongfully use marijuana.
         Award: Forfeiture of $521.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
010819:  Commanding Officer, USS GEORGE WASHINGTON (CVN 73) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: "Prior to his enlistment in the Navy he was arrested and convicted for possession of marijuana and entered the navy under a waiver. AR Z_ (Applicant) commenced two separate periods of unauthorized absence for 19 days and 29 days. The results of urinalysis he was administered revealed his use of marijuana. Subsequent to his administrative processing the member was evaluated by the ship’s psychologist and was determined to have a severe personality disorder. The psychologist recommended administrative processing for drug abuse be expedited. AR Z_'s (Applicant’s) use of marijuana illustrates his total disregard for the Navy's rules and regulations. His behavior is not compatible with the good order and discipline of the service. His inability to conform to the standards and requirements of the Navy leave me no alternative but to recommend AR Z_ (Applicant) be separated from the Naval service with an other than honorable discharge.

010824:  COMCRUDESGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010825 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).

The Applicant contends that he was discriminated against, stating that he never was in any trouble prior to his going UA. The NDRB recognizes that life in the U.S. Navy presents certain hardships and challenges to the men and women who volunteer to serve this country. These hardships and challenges, however, do not excuse a Sailor from accountability for his or her actions. T he Board thoroughly reviewed the Applicant's service records, to include the record of his separation proceedings, to determine if his discharge was equitable. The Board found that:
o        the Applicant willfully and negligently committed misconduct as his record is marred by the following:
o        a summary court-martial on 20 010628 for violation of UCMJ Article 86 Unauthorized absence (2 specifications);
o        nonjudicial punishment (NJP) on 20010808 for violation of UCMJ Article 112a Wrongful use of a controlled substance.
o        the Applicant was properly notified on 20 010719 of both his command's intent to administratively separate him and of the rights afforded to him as part of that administrative separation;
o        the Applicant, on 20 010719, waived his right to consult with legal counsel certified under Article 27B of the UCMJ.
 While the Applicant may feel that he was mistreated by the Navy, there is no evidence in the record to suggest that the Applicant was treated unfairly by anyone either in his command or involved in the discharge process. The record shows that he was afforded due process during his administrative separation processing and that he was treated equitably. Relief on this basis is denied.

The Applicant further contends that he was never in any trouble prior to his going UA and that he had a good service record, including awards, prior to this time. The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, as noted above. The awarding of nonjudicial punishment (NJP) on 20 010808 for wrongful use of a controlled substance substantiates the reason for the Applicant's separation as well as his characterization of service under other than honorable conditions. Further, there is nothing in the record to establish that the Applicant was not responsible for that misconduct or that he should not be held accountable for his actions. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged. Relief on this basis is denied.

The Applicant contends that he suffered from back problems and that the Navy's lack of care for this problem motivated him to find a way to leave service. The record shows that the Applicant was being seen and treated by competent medical authority both aboard the USS GEORGE WASHINGTON (CVN 73) and by the Naval Medical Center in Portsmouth, VA. The severity of his condition was evaluated and action was taken to treat this condition and provide the Applicant with therapy. Regardless, the use of controlled substances in any situation -- other than as prescribed by competent medical authority -- constitutes a violation of UCMJ Article 112a and is punishable under that Code, to include administrative processing for separation. The Board found that the Applicant's medical condition does not mitigate his misconduct. Relief on this basis is denied.

 The following is provided for the edification of the Applicant. There is no law or regulation, which provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the 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 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. The Applicant did not submit any documentation of a post-service nature for the Board to consider relief on this basis.

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 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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