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Docket No. ND00-00717

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

 ex-ADAA, USN
Docket No. ND00-00717

Applicant’s Request

The application for discharge review, received 000512, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001206.
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.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My service record was excellent (till the positive).

2.  I was'nt completely aware of my legal rights.

3.  They kept C_ H_ in after testing positive.

4.  I wanted to stay in the service and tried the best way I knew how, but I was discourageg by naval personnel and mentally exhuasted between my discharge and my fiancee.

5.  Propriety and fairness.  The Recorder at the Admin Board advised members of the Board they could not find the member possessed exceptional potential because evidence does not show he is a 4.0 Sailor.  This was prejudicial to the member and did not allow the Board to find in favor of the member.  NAVOP 125/85 provides for retention of a service member who has a first- time drug -incident, is found non-dependent, exhibits exceptional potential for further service and a desire to remain in service.  The NAVOP does not indicate that a service member must be a 4.0 Sailor.  Witnesses testified as to the potential of the member and the government failed to provide evidence to rebut that testimony.  The members of the Board where therefore instructed in error and prevented from reaching a decision to retain the member.

6.  Clemency based on post service, conduct.  Applicant shows remorse and takes responsibility for his actions.  He has shown himself trustworthy, reliable and courteous.  His work and attitude have proven to be impeccable.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for fairness and propriety and well as post service conduct.

Documentation

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

Statement from applicant
Character/job reference dated April 12, 2000
Character/job reference dated March 21, 2000
Character/job reference dated April 11, 2000
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	840824 - 850420	COG

Period of Service Under Review:

Date of Enlistment:  850501		Date of Discharge:  870407

Length of Service (years, months, days):

	Active:    01  11  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.20 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC (2), NER (2), SSDR, AFEM

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:

850506:	Applicant briefed on Navy's policy of drug and alcohol abuse.

861210:	NAVDRUGLAB Norfolk, VA reports applicant's urine sample received 861203 tested positive for cocaine.

861211:	NJP for violation of UCMJ, Article 112A: Wrongful use, possession of controlled substance on 3Dec86.
	Award: Forfeiture of $358 per month for 2 months, restriction and extra duty for 45 days, reduction to ADAA.  No indication of appeal in the record.

861217:	Drug and Alcohol Abuse Report: Cocaine abuse, 1 to 3 times per month December 1986, ashore off duty.  Urinalysis December 1986.  SAC found applicant not dependent and recommended separation.  Commanding officer recommended separation.  Comments: ADAN (applicant's) uncaring attitude and inability to accept responsibility make him a burden to this command and the Navy that can no longer be tolerated.  Mbr is currently assigned to the line division where his poor attitude is a continual source of controversy and a drain on the efforts of his fellow shipmates.  His potential for continued naval service is at best extremely poor.  It is the cmd DAPA's recommendation that mbr be processed for discharge under other than honorable conditions.

870316:	Medical evaluation for drug/alcohol abuse found the applicant to be an alcohol abuser, not drug dependent.   

870105:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer's NJP of 11 December 1986, violation of UCMJ Article 112A: Use of cocaine.  [Dated estimated.]

870105:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

870213:	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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

870220:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

870310:	Statement of deficiencies from NAVLEGSVCOFF DET OCEANA, VA found in service record.

870326:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870407 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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’s first issue states:  “My service record was excellent (till the positive).”  The NDRB found that the applicant’s otherwise creditable service was marred by his misconduct.  Relief is denied.

The applicant’s second issue states:  “I wasn’t completely aware of my legal rights.”  The NDRB found that the applicant was afforded his rights according to regulations and was, in fact, represented by qualified counsel.  Relief is not warranted.

The applicant’s third issue states:  “They kept C_ H_ in after testing positive.”  The NDRB found this issue non decisional.  Relief is not warranted.

The applicant’s fourth issue states:  “I wanted to stay in the service and tried the best way I knew how, but I was discouraged by naval personnel and mentally exhausted between my discharge and my fiancée.”  The NDRB found this issue non decisional.  The applicant was fit for duty at the time of discharge.  Relief is not warranted.

The applicant’s fifth issue states:  “Propriety and fairness.  The Recorder at the Admin Board advised members of the Board they could not find the member possessed exceptional potential because evidence does not show he is a 4.0 Sailor.  This was prejudicial to the member and did not allow the Board to find in favor of the member.  NAVOP 125/85 provides for retention of a service member who has a first- time drug -incident, is found non-dependent, exhibits exceptional potential for further service and a desire to remain in service.  The NAVOP does not indicate that a service member must be a 4.0 Sailor.  Witnesses testified as to the potential of the member and the government failed to provide evidence to rebut that testimony.  The members of the Board where therefore instructed in error and prevented from reaching a decision to retain the member.”  The NDRB found no inequity or impropriety in the applicant’s discharge.  Specifically, the findings of the administrative board were reviewed and approved by the convening authority.  Counsel for the respondent’s letter of deficiency was available to the NDRB.  Relief based on this issue is not warranted.

The applicant’s sixth issue states:  “Clemency based on post service, conduct.  Applicant shows remorse and takes responsibility for his actions.  He has shown himself trustworthy, reliable and courteous.  His work and attitude have proven to be impeccable.”  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  While the applicant provided some character references and a personal statement, he did not provide sufficient documentation of his sobriety with drug tests, police records, and volunteer community service.  Relief is not warranted.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective 
15 Dec 86 until 14 Jun 87, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B.  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.  

C.  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.

D.  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.

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 "afls14.jag.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:

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

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/A9217/A0157/A9321