Author: CAP
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Docket No. ND02-00554

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

 ex-BMSN, USN
Docket No. ND02-00554

Applicant’s Request

The application for discharge review, received 020314, 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 Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021217.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  The issue I have, is that was a time in my life when I did not know who or where to turn to.  If you review my records you will find I was at a hard time in my life.  After my mother had heart surgery and lost her job.  I was trying support and be productive in the Navy.  In the process, I failed but that was years ago and I'm beyond that now.  Please read my attached form.  Sincerely   PS. I have attached statements from my pastor, my attorney, my employer all attesting to my good behavior since my release form active duty.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assemble for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his Discharge from a General (Under Honorable Conditions Discharge) to a Navy Services Honorable Discharge.
The (FSM) enlisted in the navy on November 25, 1997 and was separated from the US Navy Services on November 23, 1992 for a period of (5) years received no prior UCMJ Punishments or NJP Punishments, other than the subsequent offenses that lead to his dismissal from the Naval service.  The (FSM) has several recommendations for good conduct as well as glowing remarks from this supervisors and superiors for this term of service to include the recommendation tat he be given a General (Under Honorable Conditions) Discharge. The (FSM) desires to have his Discharge up-graded due to the fact that he feels now is is able to handle his addiction to drugs, which subsequently lead to his dismissal from the Naval Services a carrer he loved and took pride in.  The (FSM) understands the severe violations of using of drugs on or off active duty.  The (FSM) Drug abuse that lead to his discharge he feels can be personally attributed to enability to handle both the stressful military and civilian life that lead him to experience the using of drugs on active duty.  The (FSM) knows now that he should take have enlisted other avenues to correct his negative behaviors and actions, but since he did not act in a positive manner, he now takes full responsibility for his negative actions and early separation from Naval service.
The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive and an up-grade of his General (Under Honorable Conditions) Discharge to a Honorable Discharge.
The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and the reasons for his violations Drug Abuse and his subsequent dismissal for his (2) UCMJ Article's of punishment from the US Naval Services. The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his entire term of enlistment of military duty in the Naval Services but just failed these to cited incidents.  We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he make and the negative behavior he exhibited and that occurred to him in fulfilling his military duty in the United States Naval Services. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering, a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.   Respectfully,

Documentation

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

Applicant's DD Form 214 (Member 4 and 1)
Letter from Pastor, New Mt. Zion A.M.E. Church dated April 20, 2000
Character reference from an attorney, undated
Job reference dated March 28, 2000
Performance summary dated September 2, 1992
VA Form 21-22, Appointment of Veterans Service Organization as Claimant's
    Representative dated January 3, 2002
Statement in support of claim from Applicant dated January 3, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871110 - 871124	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  871125		Date of Discharge:  921123

Length of Service (years, months, days):

	Active:    04  11  29
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  44

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (6)	Behavior:  3.70 (6)		OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR with Bronze Star, SASM with Bronze Star, GCM, NER, MUC, AFEM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

871214	Applicant advised that he has been identified, through urinalysis testing, to be a drug abuser.  Applicant tested positive for THC in the accession pipeline urinalysis.

880208:	Retention Warning:  Advised of deficiency (Distributing to a minor.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880211:	Drug and Alcohol Abuse Report:  Marijuana abuse, less than monthly, ashore off duty.  Service directed urinalysis 871214.  Commanding Officer recommended retention and Level I treatment.  

920630:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 920723, tested positive for cocaine.

920707:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine between 21-23 June 1992.
	Award:  No punishment.  No indication of appeal in the record.

921001:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine.
	Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days, reduction to BMSN.  No indication of appeal in the record.

921029:	Psychiatric evaluation: Impression: Substance abuse, adjustment disorder with depressed mood.

UNDATED:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920805:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920906:	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 by a vote of 2 to 1 recommended discharge under honorable conditions (general).  Dissenting Member Comments: Due to service member (Applicant) present time in Navy and [the fact that he] has been a productive asset to his department.  I feel as though this should determine an honorable discharge, and he deserves to have a clean slate in the outside world.

920923	Letter of Deficiencies from Applicant’s lawyer to the Bureau of Naval Personnel requesting general discharge upgraded to honorable.

921103:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  During the NJP on 7 July 1992, it was not my intention to convict Seaman (Applicant) of this offense and not impose any punishment.  In the course of my discussion with him regarding the mandatory administrative separation processing which would occur based on his conviction at NJP, and my frustration at such a fine Petty Officer being before me for such an offense, I concluded the hearing before I realized that I had imposed no punishment.  I also realized that I could not impose punishment after I had already concluded the hearing.

	Petty Officer W_ (Applicant) has been onboard for almost two years and has performed his duties in an excellent manner.  Until the [second] NJP which was the subject of the Administrative Board, Petty Officer (Applicant) had never had any disciplinary action taken against him.  Based on his prior performance, I feel that a general discharge is warranted in this case, and I concur with the findings and recommendations of the Administrative Board.

921116:	BUPERS directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 921123 under honorable conditions (general) 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 requested the Board consider that he was having a hard time in his life at the time of his discharge and that his overall service warrants a fully honorable characterization of service.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  While the Board agrees, that the Applicant had good evaluations throughout his naval service, his performance prior to his drug use does not mitigate his use of illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Applicant’s service record is marred by award of non-judicial punishment for using cocaine.  The record clearly reflects the Applicant’s disregard for the Navy’s Zero Tolerance Policy on drug use and demonstrated he was unsuitable for further service.  Furthermore, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2:  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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post-service accomplishments was found not to mitigate the conduct for which he was discharged.  Relief denied.  

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 additional documentation to support any claims of post-service accomplishments at that time.  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 15560C), effective 15 Aug 91 until 04 Mar 93, 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/A9317/A9223/A9439/A9221