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Docket No. ND01-00439

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

ex-SR, USN
Docket No. ND01-00439

Applicant’s Request

The application for discharge review, received 010222, requested that the characterization of service on the discharge be changed to Honorable.  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 010719.  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 ability to serve was impaired by my youth and immaturity: Reference paragraph 1 of attached letter titled "Request for Review" sentence 3 and 4, page 1, paragraph 1.

2.  Personal problems impaired my ability to serve: Reference paragraph 2 and 3 of attached letter titled "Request for Review" Entirely of paragraph 2, paragraph 3 sentences 1 through 3.

3.  My use of drugs impaired my ability to serve:  Reference paragraph 3 of attached letter titled "Request for Review" Entirely of paragraph 3.

4.  There was a waiver of moral standards which I enlisted; those pre-service problems impaired my ability to serve:  I had disclosed a previous drug history prior to enlistment, I mad a sincere effort not to use drugs after enlisting but was caught up in it shortly after completing basic training.  I abused alcohol regularly although I did not consider myself an alcoholic and was never treated for alcoholism, all seven NJP's on my military record were a direct result of my being under the influence of drugs or alcohol and exercising clouded judgement. 

Documentation

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

Copy of DD Form 214
Letter from Applicant (2pgs)
Character Reference Letter from Wife
Employment Reference Letters (2)
Letter of Recommendation from Pastor
Reference Letter from Applicant's Father
Family Portrait
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  840217		Date of Discharge:  860228

Length of Service (years, months, days):

	Active:    02  00  12
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (24 months extension)

Education Level:  12 1/2			AFQT:  85

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.86 (3)	Behavior:  1.86 (3)		OTA:  1.86

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

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:

840712:	Retention Warning:  Advised of deficiency (Wearing civilian clothes without proper authorization 840624.  You received CO's Mast for this offense 840712), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
840712:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, not to wear civilian clothes.
	Award:  Forfeiture of $334.00 per month for 1 month, extra duty for 14 days.  No indication of appeal in the record.

840816:	Retention Warning:  Advised of deficiency (UA 0600-0750, 840724; wearing civilian clothes without authorization, failure to obey a lawful order, destruction of government property, assault, failure to go to place of duty, drunk and disorderly conduct.  You received CO's mast for these offenses 840816), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

840816:	NJP for violation of UCMJ, Article 86: UA from place of duty on or about 0600 to 0750, 870724 and UA from place of duty on or about 1330 840814, violation of UCMJ Article 92: On or about 0130 840729 wore civilian clothes, on or about 1800, 840724 failed to clean his room, violation of UCMJ Article 108: On or about 0300 840729 destroy a towel rack, on or about 0300, 840729 destroy curtain pulley assembly, on or about 840729 damage a bulkhead, violation of UCMU, Article 128: (2 Specifications), On or about 0330 840729 assault shipmate bartrug.  Additional Charge, violation of UCMJ, Article 86: UA from place of duty on or about 0645 to 0815 840802.
	Award:  Correctional Custody for 30 days, forfeiture of $298.00 per month for 2 months, reduction to E-1.  No indication of appeal in the record.

850123:	NJP for violation of UCMJ, Article 134: Disorderly conduct at the EM Club, violation of UCMJ Article 112a: Wrongful possession of a controlled substance (marijuana) at the EM Club.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

850123:	Retention Warning:  Advised of deficiency (Involvement with controlled substances, misconduct, violations of the UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

850817:	NJP for violation of UCMJ, Article 86: UA from USS KALAMAZOO at HAIFA, ISRAEL from 2000, 850803 to 2130, 850803, violation of UCMJ Article 91: Will disobedience of warrant, noncommissioned or petty officer on 850803.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

850916:	NJP for violation of UCMJ, Article 86: Failing to go or leaving place of duty 0615, 850825, 0615, 850902, Restricted Men's Muster, violation of UCMJ Article 92: Failure to obey other lawful written order.  Failure to obey order from CO to make Restricted Men's Muster.
	Award:  Extra duty for 10 days.  No indication of appeal in the record.

860206:	NJP for violation of UCMJ, Article 112a: (3 Specifications), wrongful use of a controlled substance, cocaine, hashish, and marijuana, violation of UCMJ Article 107: False Official Statement, violation of UCMJ Article 108: Destruction of government property in ship's crew's lounge, violation of UCMJ, Article 134: Falsifying official documents SNM military I.D.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

860212:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct as evidenced by six separate CO's NJP's dated 840712, 840816, 850123, 850817, 850916, and 860206 and misconduct due to drug abuse as evidenced by CO's NJP's on 850123 and 860206.

860212:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.

860218:	Medical evaluation indicates recreational drug abuse, no evidence of psychological or physical dependence.

860225:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Pattern of misconduct and misconduct due to drug abuse.
 
860225:	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 860228 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).

Issue 1.  The applicant states, his ability to serve was impaired by his youth and immaturity.  The Board determined the applicant’s youth and immaturity at the time of his discharge were not mitigating circumstances, and do not warrant upgrading his discharge.  The applicant willfully disobeyed Navy regulations that govern the behavior of military members.  He received three retention warning, which gave him three opportunities to change his behavior and conform to Navy directives.  Although after three NJPs the applicant’s command had grounds to discharge him from the military, the applicant was not discharged until after he had six NJPs.  The applicant was properly and equitably discharged.  Relief denied.

Issue 2.  The applicant states, personal problems impaired his ability to serve.  There is no evidence in the applicant’s record nor did he provide any evidence to show that he attempted to use his chain of command to resolve his problems.  Neither is there any evidence to show that his personal problems were of such severity, that they could not be handled by his chain of command.  The discharge was proper and equitable.  Relief denied.

Issue 3.  The applicant states, his use of drugs impaired his ability to serve.  The Board agrees.  The applicant willfully disobeyed the Navy’s policy against the use of illegal drugs on three documented occasions.  He did not serve honorably.  The discharge was proper and equitable.  Relief denied.

Issue 4.  The applicant states, all seven NJPs on his military record were a direct result of him being under the influence of drugs or alcohol and exercising clouded judgment.  The Board regrets that the applicant’s statement only clarifies and supports the fact that he used illegal drugs regularly.  There is no basis for which to upgrade the applicant’s discharge.  The discharge was proper and equitable.  Relief denied.

The following is provided for the benefit of the applicant.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective 
16 Dec 85 until 05 Oct 86, 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 "afls10.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/A9301/A9309