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NAVY | DRB | 2006_Navy | ND0600309
Original file (ND0600309.rtf) Auto-classification: Denied


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

ex-HTFR, USN
Docket No. ND06-00309

Applicant’s Request
The application for discharge review was received on 20051213 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ MDB .” 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 20061025 . 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 and reason for 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:
“ To the Board, My name is J_ O_ (Applicant). SSN (--- -- -----). July of 1999, I enlisted in the U. S. Navy. I was station at Assault Craft Unit 4 in Little Creek, Virginia, in the Beginning of January. In the middle of May I was convicted of Using marijuana and received 45 days Restriction, 45 days extra duty w/ ½ pay for 2 months. The Military is the Only Career that I ever wanted for myself, it was a goal I had since I was young. I know I made a really stupid mistake when I was young by using Marijuana when enlisted (member of) in the U.S. Navy. It was not only wrong but also illegal & dishonorable in the Military. I am c urrently Clean & Sober & have been for 18 months now. I have gone through a Drug & Alcohol Treatments Service (DATS) facility in Scranton, Pennsylvania and I find no trouble a bstaining from the u se of Alcohol or Marijuana. Since my discharge from the U.S. Navy, I have Realized that I was Dead Wrong in using marijuana not only because of the Affect on my military career but also in my personal life. My Family & Close friends have noticed this as a positive change in my life. Now that I have rehabilitated myself & matured, I feel I am ready to pursue my dram by meeting my goal of making a career for myself in the Pennsylvania Army National Guard, and righting the wrong I made 5 years ago.

Thank You, J_ A. O_ (Applicant)”

 “ To whom it may concern,

I know I made a really bad mistake when I was young. The Pennsylvania Army National Guard will take me if my discharge condition Gets upgraded. I wouldn’t be going through all this if I didn’t want the Military This is my Last chance. I am literally begging you for a pardon. I promise I will never embarrass the U. S. Navy, PA-Guard or my Country ever again. I just want the chance to serve Again and Do it Right this time with Honor. I already have a good physical & ASVAB on File. Please, I Beg! Please upgrade my (character of Service Code, Separating Code, Reentry Code - Need at Least a (3), & (my Narrative Reason For Separation.
Thank You So Much & Happy Holiday

J_ O_ ( Applicant) ”





Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 7) (3 copies)
Character Reference ltr from D_ M. A_, BA, dtd August 15, 2005
Applicant’s Request for Waiver, dtd August 13, 2005
 Ltr from Drug and Alcohol Treatment Service, K_ O_, Treatment Specialist, dtd March 30, 2005
Memorandum from Pennsylvania Army National Guard, J_ R. C_ Jr., SFC, PAARNG, Operations NCOIC, dtd August 8, 2005
Memorandum from Department of the Army and the Air Force, C_ L. U_ Colonel, MC, Chief Surgeon, ARNG, dtd Aug 9, 2005
Character Reference ltr from SFC B_ C_, PA-ARNG, Recruiting and Retention Command
Ltr from Applicant, J_ O_, undated
Twenty-Five (25) pages from Applicant’s Service Record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990603 - 19990719       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19990720              Date of Discharge: 20000719

Length of Service (years, months, days):

          Active: 0 1 00 00
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4 ( 24 -month extension)

Education Level: 12                                 AFQT: 79

Highest Rate: HTFA

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 1 )     Behavior: 1 .0 ( 1 )        OTA: 2 . 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 3630620.

Chronological Listing of Significant Service Events :

990603 :  Applicant briefed on Navy's pol icy of drug and alcohol abuse.

000428:  Urinalysis consent form.

xx0502:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 000502, tested positive for THC.
000512:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.
000512:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
000518:  NJP for violation of UCMJ, Article 112: Wrongful use, possession, etc., of a controlled substances (THC).
         Specification: In that Hull Technician Fireman J_ O_ (Applicant), U. S. Navy, Assault Craft Unit FOUR, Naval Amphibious Base, Littler Creek Norfolk, Virginia, while on active duty did, on or about 26 April 2000, wrongfully use of a controlled substance.
         Violation of UCMJ, Article 92: Fail to obey order or regulation.
         Specification: In that Hull Technician Fireman J_ O_ (Applicant), U. S. Navy Assault Craft Unit FOUR, Naval Amphibious Base, Little Creek, Norfolk, Virginia, while on active duty did, on or about 000501, violate a lawful order to wit: wrongfully having in his possession a dangerous weapon in his barracks room.
          Award: Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
000614:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed drug abuse, that such misconduct wa rranted separation, and recommended discharge with an under other than honorable conditions.
000621:  Letter of Deficiency from Lt T_ K. B_, JAGC, USN, Counsel, dtd 000621.
000623:  Medical Health, K. S. F_, M.D., LT/MC USNR: 19 year old here for Level III PE giving for alcohol dep. Who had pains VDS for marijuana. Complains of L thumb pain to crushing injury & R ---- --- pain last drink 35 days ago. Get depressed & anxious
         A: 1. h/o ETOH dep drug use my hx
         2. R hand jt pain
         3. D epression
          P: 1. check xR both hands
         2. order LFT TSH
         3. cleared for level III physically-low risk of withdrawal if ---- ETOH 35 days ago
         4. patient needs to be at ARD 7/6/00 @645 for pre admission
000627 :  Commanding Officer, Assault Craft Unit Four, r ecommended , Commander, Amphibious Group TWO, that the Applicant be discharge d under other than honorable conditions by reason of Misconduct-Drug Abuse . Commanding Officer’s comments: “ I concur with the Administrative Boards Finds of 14 June 2000. HTFR O_ (Applicant) enlisted into the Navy with a history of drug abuse and he signed a statement of understanding that drugs would not be tolerated in today’s Navy. He subsequently broke his agreement with the Navy not to use drugs when he tested positive for THC .
As noted in the Defense Counsel’s letter or deficiency, board members viewed testimony of witnesses for HT FR O_, (Applicant) via a mutually agreed upon videotaping conducted 000606 as a result of the witness not being available on 000614 because of operational commitments. Additionally, board members carefully considered exhibits and listened to the testimony of the Recorder’s witness during a two plus hour board. Upon the conclusion of final deliberations, the Administrative Board voted unanimously 3 of 3 to separate HTFR O_ , (Applicant) with an Other Than Honorable Discharge based on evidence provided and governing instructions. Therefore, based on HTFR O_, (Applicant)’s use of illegal drugs while in the Navy and the Administrative Board’s findings, it is my recommendation that he be separated from the Naval service under Other Than Honorable (OTH) conditions. ”
XXXXXX :  Medical evaluation: Member found dependent on drugs by a licensed Independent Practitioner (LIP) at NAB Little Creek, VA and has subsequently been scheduled to attend Level III treatment for drugs at ARD, Norfolk, VA with processing starting 000706.
00 0710 :  Commander, Amphibious Group TWO, authorized Commanding Officer, Assault Craft Unit FOUR, that the Applicant will be discharged under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000719 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant claims he has been clean and sober for 18 months. He states “I find no trouble abstaining from the use of Alchol or Marijuana.” The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 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. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.

The Applicant claim s he made a “ really stupid mistake ” when he was young by using Marijuana while enlisted in the U.S. Navy. Although the Applicant was only 19 at the time of his discharge the statement contained in the application that the Applicant’s admission of marijuana use was due to his youth and immaturity was found to be insufficient justification to warrant a change in the reason for discharge. Relief denied.

The Applicant claims he has a goal of joining the Pennsylvania Army National Guard. He is requesting a Reentry Code upgrade of at least RE-3. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 92 (Failure to obey an order or regulation) and 112a (Wrongful use, possession, etc. of a controlled substance).

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 .

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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