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NAVY | DRB | 2005_Navy | ND0501503
Original file (ND0501503.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND05-01503

Applicant’s Request
The application for discharge review was received on 20050914. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) or entry level separation or uncharacterized. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. 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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“Request the Board review the last 6 months of my active duty. I still did my job on board USS GEORGE WASHINGTON but received no payment of salary during that time. I truly loved being in the military and regret that my Captain saw fit to discharge me because of a stupid mistake instead of giving me another chance. I believe that even though I was not allowed to complete my contract that I still did my duty to the fullest of my abilities and I hope you see that as well.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970129 – 19980105               ELS
 Inactive: USNR (DEP)     19980521 – 19980915               ELS
          Inactive: USNR (DEP)     19990615 – 19990624               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990625             Date of Discharge: 20000508

 Length of Service (years, months, days):

         Active: 00 10 14 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 18 days
         Confinement:              3 days

 Age at Entry: 21

 Years Contracted: 4

Education Level: 12                                 AFQT: 57

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)              Behavior: 1.0 (1)                 OTA: 1 .50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly Article 3630620 .
Chronological Listing of Significant Service Events :

990610:  United States Navy Alcohol and Drug Abuse Screening Certificate: Applicant acknowledged using stimulants or depressant drugs between six months and one year ago, and experimentally/casually used marijuana over six months ago.

990611:  Pre-service waiver for DEP discharge (amphetamine use) and non-minor misdemeanor (assault) granted.

991215:  NJP for violation of UCMJ, Article 86: UA from unit from 991124 to 991126.
 Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 10 days. No indication of appeal in the record.
000124:  UA over liberty from USS GEORGE WASHINGTON (CVN 73).

000126:  Missed movement of the USS GEORGE WASHINGTON (CVN 73).

000204:  Surrendered on board USS GEORGE WASHINGTON (CVN 73) at 2100 this date.

000229:  NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: UA from unit from 991231 until 000121.
Specification 2: UA from 000124 until 000204.
         Violation of UCMJ, Article 87: Miss movement on or about 000126.
 Violation of UCMJ, Article 112a: Wrongful use of cocaine on or about 000120.
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

000315:  NJP for violation of UCMJ, Article 86 (6 specs): Unauthorized absence from appointed place of duty, to wit: Restricted Personnel Muster.
 Award: 3 days confinement on bread and water. No indication of appeal in the record.
000318:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense as evidenced by his Commanding Officer’s nonjudicial punishment held on 000229, for violation of the UCMJ, Article 87, missing ship’s movement on 000126, and by reason of drug abuse as evidenced by his Commanding Officer’s nonjudicial punishment held on 000229, for violation of the UCMJ, Article 112(a), wrongful use of cocaine on 000120.

000324:  Record of Counseling: Missed/Late Restricted Muster on 24 MAR at 0630, arrived at dispatch at 1412, total time UA 6 HRS 42 MINS. This is Applicant 9 th UA.

000324:  Commanding Officer, USS GEORGE WASHINGTON (CVN-73) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by his Commanding Officer’s nonjudicial punishment held on 000229, for violation of the UCMJ, Article 87, missing ship’s movement on 000126, and by reason of drug abuse as evidenced by his Commanding Officer’s nonjudicial punishment held on 000229, for violation of the UCMJ, Article 112(a), wrongful use of cocaine on 000120. Commanding Officer’s comments: “AR A_ (Applicant) has demonstrated a complete inability to conform to the standards and requirements of the Navy. His behavior and continued presence are detrimental to morale and good order in this command. He has no potential for continued service, therefore, I recommend that AR A_ (Applicant) be separated from the Naval service with an Other than Honorable discharge.”

000404:  GCMCA, Commander, Cruiser Destroyer Group Two authorized the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

 Service Record contains a partial Administrative Discharge package.
Service Record was missing elements of the summary of service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 2000508 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions. 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 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 his issue. The service record contains a partial discharge package and is missing elements of the summary of service. The Board presumed the Applicant was advised of his rights and provided the opportunity to consult with counsel, elected or waived each right, evaluated for drug dependence, and if dependent he was offered treatment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

The Applicant contends that he did his duty to the fullest of abilities. He states that he was discharged for “a stupid mistake instead of giving me a second chance.” The Board discovered no impropriety after a review of Applicant’s case. 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. Separation under these conditions generally results in characterization of service under other than honorable conditions. Additionally, the Applicant’s service was marred by three nonjudicial punishment proceedings for violations of Articles 86 (9 specs), 87, and 112a of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is 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 additional evidence related to this 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 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 87 – missing movement and Article 112a – wrongful use of cocaine.

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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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