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NAVY | DRB | 2006_Navy | ND0600470
Original file (ND0600470.rtf) Auto-classification: Denied


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

ex-ACAA, USN
Docket No. ND06-00470

Applicant’s Request
The application for discharge review was received on 20060208 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . 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 20061130 . 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 ization 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:

“ To enable medical benefits due to injury sustained during service. My discharge was inequitable because it was based on one isolated incident in 34 months of service. Please take into account my family situation at the time, which had a great impact on my life. My Father at the time was homeless. I was going on my 4 th year of not being in contact with my mother not to mention an even longer time period with another Family member. I don’t want one mistake to discredit the honorable service I had with the navy. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 7)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011016 - 20011104       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20011105              Date of Discharge: 20040923

Length of Service (years, months, days):

          Active: 0 2 10 19
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4 ( 12 -month extension)

Education Level: 12                                 AFQT: 53

Highest Rate: ACAN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 5 ( 2)      Behavior: 2 . 3 ( 3 )                 OTA : 2 . 52

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

* Not Available


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 :

040712:  NAVDRUGLAB, Jacksonville/FL, reported Applicant’s urine sample, received 040706, tested positive for THC.
040721:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Specification: In that Air Traffic Controlman Airman S_ V. S_ (Applicant), U. S. Navy; Naval Air Station Joint Reserve Base, Willow Grove, Pennsylvania, on active duty, did, at or near New York City, New York, on or about 040705, wrongfully use marijuana.
 Award: Forfeiture of $668.00 pay per month for 2 months, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
040802:  Primary Care BMC Willow Grove: Recommend Level III for Alcohol dependence.
040810:  NAVDRUGLAB, Jacksonville/FL, reported Applicant’s urine sample, received 040805, tested positive for THC.
040826:  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.
040826:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation .

 040917:  Commanding Officer, Naval Air Station Joint Reserve Base, Willow Grove recommended to Commander, Navy Region, Mid-Atlantic that the Applicant will be dis charge d under other than honorable conditions by reason of misconduct due to drug abuse . Commanding Officer’s comments: “Airman Apprentice S_ (Applicant) recently reported onboard from Si gn onella as a humanitarian transfer. He returned a positive urinalysis for THC within a month of being on board. While pending administrative separation he had an additional positive urinalysis for THC and was found by me at non-judicial punishment to have used marijuana despite his failure to be forthright about his drug abuse. My finding was based upon a positive urinalysis and statements made at the NJP hearing that he was knowingly in an area where drugs were being abused that he “shotgunned” marijuana to another person. Subsequently he was caught “huffing” aerosols. Airman Apprentice S_ is a burden to this command and a significant ne gative influence to his peers. His actions are contrary to the Navy’s Zero Tolerance policy and his behavior is not in keeping with our Navy Core Values of Honor, Courage and Commitment. He waived his rights to an Administrative Board and based upon the above I recommend that Airman Apprentice S_ be separated from the Navy with an Other than Honorable characterization of service.

040917 :  Commander, Navy Region Mid-Atlantic directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

040922:  Patient Discharged from Substance Abuse Substance Abuse Rehabilitation Program, Naval Medical Center Portsmouth (NMCP)
         Discharge Summary
         AXIS I: Alcohol & Nicotine Dependence, Cannabis abuse
         AXIS II: Deferred
         AXIS III: L shoulder Pain, R Hand Pain
         Treatment Terminated Secondary to Patient Noncompliance
         Recommendation: Participate fully in your Continuing Care Plan from NMCP SARP, to include regular monitoring by your unit Drug and Alcohol Program Advisor, participation in formal aftercare meetings, and participating in 12-step meetings as arranged by your command or program advisor.
         Report to your Primary Care Provider for Follow-up.

040923:  Applicant Discharged

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040923 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 Board presumed regularity in the conduct of governmental affairs (E).
The Applicant states his discharge was “inequitable because it was based on one isolated incident in 34 months of service.” Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Mandatory processing for separation is required for Sailors who abuse illegal drugs. The Applicant’s record of service indicates two positive urinalysis results on 040712 and 040810. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant contends his disciplinary problems were the result of stress caused by his family situation. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant states that he is requesting an upgrade to receive medical benefits. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

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), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, 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 112a (use 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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