Applicant spoke with a military lawyer and demanded trial by court martial

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					                            DEPARTMENT OF THE NAVY
                    NAVAL DISCHARGE REVIEW BOARD (NDRB)
                                 DISCHARGE REVIEW
                              DECISIONAL DOCUMENT




                                       ex-YN2 USN
                                   Docket No. ND99-00018

Applicant’s Request

The application for discharge review, received 980929, requested that the characterization of
service on the discharge be changed to General/under Honorable conditions. The applicant
requested a documentary record discharge review. The applicant did not list any representative
on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990920. After a
thorough review of the records, supporting documents, facts, and circumstances unique to this
case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s
service. Where documentation was not available in the record to demonstrate that proper
procedures were executed by the applicant’s command, in the discharge process, the Board
assumed regularity. The Board’s vote was unanimous that the character of the discharge shall
not change. The discharge shall remain: UNDER OTHER THAN HONORABLE
CONDITIONS/MISCONDUCT – Drug abuse (Use), authority: NAVMILPERSMAN, Article
3630620.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks,
should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 92FEB03 UNTIL
95NOV26.”




               PART I - APPLICANT’S ISSUES AND DOCUMENTATION

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and
Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent
Regulation/Law, Part IV - Information for the Applicant.
INDEX:A6600/A9455/A0107/A9235/A9217/A0145/A9439/A0147/A9447
Docket No. ND98-00018



Issues (verbatim)

1. “My undesirable discharge is inequitable because the incident was reported through the proper
chain of command and in accordance with the MILSPERMAN. I believe I was being punished
because of filing an EEO complaint and bringing up questionable practices of the detachment to our
upper chain of command.”

2. “I believe my undesirable discharge is improper because it focuses on one isolated incident in
over 5 years of faithful service with no other adverse action.”

3. “Further counseling was requested & received through NCTC Gulfport prior to discharge and
continued after separation. Counseling records were not available to service member to submit.”

Documentation

In addition to the service record, the following additional documentation, submitted by the
applicant, was considered:

Memorandum from Ft. Leonard Wood medical Department Activity to applicant dated 23
September 1997
Navy EEO complaint filed by applicant on 19 September 1997




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Docket No. ND98-00018


                            PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

       Active: USN                    920203 - 951126        HON
       Inactive: USNR (DEP)           910514 - 920202        COG

Period of Service Under Review:

Date of Enlistment: 951127                   Date of Discharge: 971224

Length of Service (years, months, days):

       Active:   02 00 28
       Inactive: None

Age at Entry: 23                      Years Contracted: 4

Education Level: 12                          AFQT: 67

Highest Rate: YN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.9 (4)          Behavior: 4.00 (4)             OTA: 3.99

Military Decorations: None

Unit/Campaign/Service Awards: NAM (2), NUC, MUC, Battle “E”, NATO medal, AFSM,
KLM, SASM, NDSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug abuse (Use),
authority: NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

Note to recorder: The record does not include NJP(s) and there is no record of an admin board.

970902:        Applicant offered Level III treatment at a Navy Level III treatment facility per
               CNO msg 0920030Z. Applicant declined Level III treatment.



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Docket No. ND98-00018


970919:     Applicant notified that the Commanding Officer is considering imposing
            nonjudicial punishment on the following offenses: Article 112a: Wrongful use,
            possession of controlled substances on 19 August 1997. Applicant request to talk
            to lawyer. No further information found in record.

970920:     Letter from OIC, NCTC Det Ft. Leonard Wood to CO, NCTC Gulfport Ms.
            stating that a thorough investigation had been done by NCTC Det PIO,
            EOC(SCW) W. E. W_, and the command position is that YN2 (applicant's)
            self-referral is not valid and recommended that applicant receive CO's NJP and be
            processed for an Other Than Honorable discharge.

970923:     Applicant spoke with a military lawyer and demanded trial by court-martial.
            Applicant advised of his rights. No further information found in record.

971106:     Applicant notified of intended recommendation for discharge under Other Than
            Honorable conditions by reason of Misconduct due to Drug abuse and as
            evidenced by all drug incidents during current enlistment, alcohol rehabilitation
            failure as evidenced by all drug incidents in your current enlistment, and
            misconduct due to commission of a serious offense as evidenced by making a
            false official statement on 4 August 1997 and willful dereliction of duty from
            April 1997 until 13 July 1997.

971107:     Applicant advised of his rights and having consulted with counsel certified under
            UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

971114:     Applicant waived his right to an administrative discharge board and , elected to
            waive all rights except the right to obtain copies of the documents used to support
            the basis for the separation.

971209:     Commanding Officer recommended discharge under Other Than Honorable
            conditions by reason of Misconduct due to Drug abuse (Use).

9712??:       CNET directed the applicant's discharge under Other Than Honorable
            conditions by reason of Misconduct due to Drug abuse (Use).




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Docket No. ND98-00018


  PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971224 under Other Than Honorable conditions for Misconduct
due to Drug abuse (Use) (A and B). The Board presumed regularity in the conduct of
governmental affairs (C). 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 (D and E).

In the applicant’s issue 1, the Board found this issue to be without merit. Voluntary self-referral
for drug abuse constitutes an incident of drug abuse. Voluntary self-referral for counseling,
treatment or rehabilitation is a one time procedure that enables those who feel they may be drug
dependent, and want help, to obtain help, without risk of disciplinary action. Self-referral does
not, however, exempt a member from disciplinary action or adverse administrative action if they
refuse help. Relief denied.

In the applicant’s issue 2, the Board found this issue to be without merit. The Board found
nothing in the records, nor did the applicant provide anything to indicate or to show that there
exists an error of fact, law procedure or discretion associated with his discharge at the time of its
issuance. Relief denied.

In the applicant’s issue 3, the Board determined this is not an issue which would effect the
applicant’s discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)

A. Navy Military Personnel Manual, (NAVPERS 15560C, Change 16, effective 01 Jul 97 until
[current]), Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF
MISCONDUCT - DRUG ABUSE

B. Under the Manual for Courts-martial, a punitive discharge is authorized for violation of the
Uniform Code of Military Justice, Article 112a, wrongful use, possession, etc., of controlled
substances, if adjudged at a Special Courts-Martial.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge
Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL
DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge
Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge
Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.



                                                  5
Docket No. ND98-00018


                    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 obtain a copy of DoD Directive 1332.28 by writing to:

               DA Military Review Boards Agency
               Management Information and Support Directorate
               Armed Forces Reading Room
               Washington, D.C. 20310-1809

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:

               Naval Council of Personnel Boards
               Attn: Naval Discharge Review Board
               Washington Navy Yard
               720 Kennon Street SE Rm 309
               Washington, D.C. 20374-5023




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