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NAVY | DRB | 2005_Navy | ND0501550
Original file (ND0501550.rtf) Auto-classification: Denied


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

ex-HR, USN
Docket No. ND05-01550

Applicant’s Request
The application for discharge review was received on 20050920. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable 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 20060721. After a thorough review of the available 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

 No issues were submitted by the Applicant.

 Documentation
Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900809 – 19900820               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900821             Date of Discharge: 19940819

 Length of Service (years, months, days):

         Active: 03 11 29
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 23

 Years Contracted: 4

Education Level: 12                                 AFQT: 63

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.1 (6)              Behavior: 3.1 (6)                          OTA: 3. 50

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Meritorious Unit Commendation, Southwest Asia Service Medal.


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

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

900822:  Applicant briefed on Navy's policy of drug and alcohol abuse.

900823:  Retention Warning: Advised of deficiency (Defective enlistment and induction due to fraudulent entry into the naval service as evidenced by failure to disclose your preservice involvement with civil authorities consisting of the following: June 1987, speeding, Riverside, CA. (unpaid), February 1989, speeding, Corona, CA (unpaid), April 89, Expired registration, Corona, CA (unpaid) and June 1990, Expired registration, Santa Ana, CA (unpaid)), notified of corrective actions and issued discharge warning.
910507:  NAVDRUGLAB, Jacksonville Fl, reported Applicant’s urine sample, submitted on 910429, tested positive for THC.

 910523:  NJP for violation of UCMJ, Article 112a:
         Specification: In that Hospital Recruit J_, J_ M., (Applicant), U.S. Navy, on active duty, did on board Naval Hospital, Millington, Tennessee on or about 26 April 1991, wrongfully used Marijuana, a controlled substance.
 Award: Forfeiture of ½ month pay per month for 2 months (suspended for 2 months), extra duty for 30 days. No indication of appeal in the record.
910528:  Applicant notified of intended recommendation for discharge if separation is approved, the characterization of your service may be under other than honorable conditions by reason of misconduct due to drug abuse.
910530:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

910627:  Drug Dependency Screen.
 Assessment: Drug abuse – solitary incident
         Plan: No treatment necessary
910702:  Drug and Alcohol Abuse Report: Marijuana abuse incident, ashore-off duty, detected by random urinalysis. Medical Officer’s evaluation states that Applicant is not dependent on drugs.

910711:  NJP for violation of UCMJ, Article 92:
Specification: Failure to obey a lawful order regulation, to wit: SNM failed to obey a lawful order issued by the chief of the day, HM2 F_, to clean the grounds, loading dock and entrance for his two hours of EMI, did, on or about 19Jun91, fail to obey the same.
          Award: Extra duty for 05 days. No indication of appeal in the record.
910829:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and recommended retention.
910926:  Commanding Officer, Naval Hospital Millington, recommended to Commander, Naval Military personnel Command, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO’s NJP of violation of Article 112a dated 23 May 91 for marijuana use. Commanding Officer’s comments: “HR J_ (Applicant) knew the navy’s policy of “zero tolerance” for drug abuse and with total disregard for Naval Regulations and Policies, did use marijuana, a controlled substance, while on active duty. HR J_ decision to use marijuana was his own choosing. His blatant disregard for Naval Regulations and policies is reprehensible and should not be tolerated. I do concur with the findings of the Administrative Board, but I “DO NOT ” concur with the Recommendations of the Administrative Board in the strongest of terms. HR J_ (Applicant) has NO POTENTIAL for continued naval service and should be separated immediately with an “Other Than Honorable Discharge.”

911028:  BUPERS instructed Naval Hospital Millington that no further action was needed in regards to administrative separation in the case of the Applicant and that the Applicant should receive a Page 13 entry/retention warning based on the board’s finding of misconduct.

930630:  NJP for violation of UCMJ, Article 128: Assault.
         Award: Restriction for 30 days and an oral admonition. No indication of appeal in the record.

940711:  Applicant to unauthorized absence at 0630, intentions unknown.
         Applicant missed ship’s movement. Applicant’s time/date of return not contained in record.

940721:  NJP for violations of UCMJ, Articles 86 (2 specs) and 87: Unauthorized absence and missing movement.
         Award: Restriction and extra duty for 14 days, reduction to E-2. Reduction suspended six months.

940801:  Reduction to E-2 suspended at CO’s NJP on 940721 vacated this date due to continued misconduct.

940801:  NJP for violation of UCMJ, Article 112a: Drug Abuse.
         Award: Restriction and extra duty for 45 days and reduction to E-1. No indication of appeal in the record.

940819:  Applicant declined VA treatment.

940819:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse. Separation Code: HKK (board waived).
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19940819 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 Applicant submitted no issues for consideration.

 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. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board evoked the presumption of regularity. Specifically, the Board presumed that the Applicant was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation, that the Applicant was afforded all rights which he elected at notification and that the Applicant’s discharge was directed by proper authority.

The Applicant requested that his character of service be changed to honorable. 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. An 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. The Applicant’s service was marred by a retention warning, five nonjudicial punishment proceedings (NJP) for violations of Articles 86, 87, 92, 112a and 128 of the UCMJ. The Applicant’s partially suspended award from NJP on 19940721 was vacated on 19940801 due to the Applicant’s continued misconduct. The Applicant’s violations of Articles 87, 92 and 112a are considered serious offenses. 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 not warranted.

The Applicant requested that his discharge be changed to entry level separation or uncharacterized. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization. The evidence of record did not show the Applicant was notified within the first 180 days of his enlistment. However, even if the Applicant had been eligible for an entry level separation, the Applicant’s misconduct would have made such a characterization inappropriate. 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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, Article 92, failure to obey order/regulation, Article 112a, wrongful use of a controlled substance or Article 128, assault.

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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