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NAVY | DRB | 2006_Navy | ND0600009
Original file (ND0600009.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND06-00009

Applicant’s Request
The application for discharge review was received on 20050922. The Applicant requests the Discharge 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 designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing at the Washington Navy Yard, Washington, DC. Applicant did not respond.

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
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Criminal Background Check Letter dtd November 12, 2004
Letter of Recommendation from M_ D. G_, dtd March 10, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890421             Date of Discharge: 19910503

 Length of Service (years, months, days):

         Active: 02 00 13
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 8

Education Level: 12                                 AFQT: 43

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (3)              Behavior: 2.8 (3)                 OTA: 3 .33

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.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

890718:  Commenced active duty for a period of 36 months.

890719:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 890818:  Drug and Alcohol Abuse Report: Indicates marijuana abuse as a result of a service directed urinalysis, dependency not determined, recommended for Level I treatment and retention.

890822:  Applicant identified as a drug abuser and placed on drug surveillance program. Applicant further advised that a second drug abuse incident will result in immediate processing for separation.

900311:  NJP for violation of UCMJ, Article 112a: Use of controlled substance.
 Award: Forfeiture of $362.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
900312:  Retention Warning: Advised of deficiency (Drug abuse; violation of the UCMJ, Article 112(a) (Unauthorized use of a controlled substance-THC)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910304:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
 Award: Forfeiture of $375.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
910306:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct drug abuse. [Extracted from CO’s message dated 910315.]

910306:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights. [Extracted from CO’s message dated 910315.]
910315:  Commanding Officer, USS PETERSON recommended discharge under other than honorable conditions by reason of misconduct drug abuse. Commanding Officer’s comments: “FR L_ (Applicant) has become an administrative burden to this command. His history of separate drug related offenses aptly demonstrate his lack of potential for future service. In order to preserve the honor of an honorable discharge, an other than honorable discharge is recommended.”
910419:  Medical evaluation by Branch Medical Clinic, NCBC Gulfport, MS: Applicant may not be psychologically dependent and is not physiologically dependent. Admittance to Detoxification Ward is not needed. Return to full duty. Process for separation should continue.
910422:  Drug and Alcohol Abuse Report: Indicates marijuana abuse as a result of a probable cause urinalysis, found not dependent, not eligible for treatment, recommended for separation not via VA hospital.
910424:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

Service Record contained a partial Administrative Discharge Package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19910503 by reason of misconduct due to drug abuse (A) 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 In the absence of a complete discharge package, the Board presumed, based on the Commanding Officer’s message dated 19910315, that the Applicant was properly notified and advised of rights in accordance with reference A. The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence. The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge. Therefore, the Board considered the Applicant’s discharge proper and equitable. Relief not warranted.

Whenever a Sailor is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Sailor for administrative separation. There is clear evidence in the Applicant’s service record that he used illegal drugs. Indeed, the Applicant’s records contain:
•         Drug and Alcohol Abuse Report on 19890818 showing positive urinalysis result for marijuana;
•         Non-judicial punishment proceedings on 19900311 for violation of UCMJ Article 112a Wrongful use of a controlled substance;
•         Retention warning entry on 19900312 for deficiency concerning unauthorized use of a controlled substance (THC); and
•         Non-judicial punishment proceedings on 19910304 for violation of UCMJ Article 112a Wrongful use of a controlled substance.
 Evidence of such misconduct may be used to characterize a Sailor’s discharge as under other than honorable conditions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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 .

D. 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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