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NAVY | DRB | 1997_Navy | ND97-01339
Original file (ND97-01339.rtf) Auto-classification: Denied


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

ex FA, USN
Docket No. ND97-01339


 Applicant’s Request
The application for discharge review, received 970904, requested that the characterization of service on the discharge be changed to general. The applicant requested a documentary discharge review, he did not list any representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980908. The NDRB determined that the discharge properly and equitably reflects the quality of service rendered. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES (verbatim)


 1. I recieved an other than honorable discharge for my use of marijuana on or about 17 April, 1984 and 26 Jan 1984.

2. I will admitt smoking with fellow crew member’s 17 April 1984. But did not on or about 26 Jan 84 I was exposed to second hand smoke onboard the USS MacDonough DDG-39. I was simply in the wrong place at the wrong time.

3. I was offered medical help but turned it down witch I deeply regret. By turning down medical help I did not know that would be admission of guilt.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                810114-810625    COG

 Period of Service Under Review :
Date of Enlistment: 810626                        Date of Discharge: 840427

 Length of Service (years, months, days):

         Active:          02 09 27
         Inactive:        None

 Age at Entry: 18                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 25
NEC: FA 9770                              Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (3)    Behavior: 2.47 (3)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NAVY “E” RIBBON

 Nonjudicial Punishment(s): 3              Court(s)-Martial: None

 Days of Unauthorized Absence: 8

 Character, Narrative Reason, and Authority of Discharge:
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1


 810108:  Signed DD Form 1966 acknowledging that he had used drugs prior to his entry into the service.

 811119:          Joined USS MACDONOUGH (DDG-39) Charleston, SC.

 830411:  NJP for violation of UCMJ, Article 86: (2 Specifications),Unauthorized absence (UA), Specification 1: UA from 830310-830314 (4 days/S) Surrendered onboard USS MACDONOUGH (DDG-39), retained onboard for disciplinary action, Specification 2: UA from 830320-830324 (4 days/S) Surrendered on board USS MACDONOUGH (DDG-39), retained onboard for disciplinary action.
         Award: Restriction for 20 days. No indication of appeal in the record.

830510:  NJP for violation of UCMJ, Article 134: Wrongfully use an illegal substance, to wit: marijuana on or about 830417.
         Award: Forfeiture of $321.45 per month for 2 month, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.

840223:  NJP for violation of UCMJ, Article 134: Wrongfully use a schedule I controlled substance, to wit: marijuana.
         Award: Forfeiture of $334.35 per pay for 2 months, restriction for 60 days, reduction to FA. No indication of appeal in the record.
       
840227:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and as evidenced by CO’s NJP of 830510 and 840223, and lack of potential for continued naval service.[EXTRACTED FROM CO’S MESSAGE]
840227:  Applicant advised of rights and having chosen not to consult with counsel certified under UCMJ Art 27B, elected to waive all rights except the right to obtain copies of documents forwarded to the discharge authority supporting the basis for the proposed separation. Applicant did not object to the separation. [EXTRACTED FROM CO’S MESSAGE]
840307:  Medical evaluation for drug abuse found the applicant to be not drug dependent. Applicant stated he had used since he was 16 years old to present, that he had smoked marijuana one additional time since his first NJP (approximately in Jan 84).

840308:  Substance Abuse Report indicates applicant tested positive for
         marijuana, found not dependent.

840404:  Medical evaluation: Positive urinalysis May 83 and Feb 84. Experimentation with hash [indecipherable]. Used marijuana habitually prior to May 83. Applicant assess with no drug dependence.

840414:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer’s verbatim comments: Although FA H____ exhibits the technical ability to handle the work assigned to him, he does not show the initiative to do any more than the absolute minimum required. He frequently questions the orders of his supervisors, frequent disciplinary problems have combined with this indifferent attitude to further his performance. Incidents includes unauthorized absence, at least six occasions of missing muster, and frequent counseling on the poor condition of his uniform, in addition to two non-judicial punishments for drug use. He requires constant supervision. FA H__’s poor attitude has seriously hampered the ability of his work center to function as a cohesive unit. FA H__ is recommended for immediate separation from the naval service under other than honorable conditions.

840419:  CNMPC directed the applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

840426:  To UA, from USS MACDONOUGH (DDG – 39), Charleston, SC.

840427:  Applicant discharged UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.
RECORDER’S NOTES:

 1 The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

PART IV - EXTRACT OF PERTINENT REGULATION/LAW
A . Navy Military Personnel Manual, (NAVPERS 15560, Change 4/84, effective 840425 - 840916), Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE , states:

1. Basis
a. A member may be separated by reason of misconduct due to drug abuse for one or more of the following:

(1) Drug Abuse. The illegal or wrongful use or possession of a controlled substance.

(2) Drug Trafficking. The sale or transfer of a controlled substance, or the possession of a controlled substance with intent to sell or transfer.

(3) Drug Paraphernalia. The illegal or wrongful use, possession, sale, or transfer of drug paraphernalia.

b. For guidance as to when separation processing for drug abuse is mandatory, see OPNAVINST 5350.4.

2. Characterization of service

a. Normally under Other Than Honorable conditions.

b. Type warranted by service record (honorable or general) or Entry Level Separation in accordance with guidance in MILPERSMAN 3610300 when separation processing is based solely on urinalysis test (fitness for duty) results which, under OPNAVINST 5350.4, may not be used to characterize service.

c. Except in those cases falling within 2.b above, all cases processed under this Article where a characterization of service as General or Entry Level Separation is assigned must be forwarded to the Chief of Naval Personnel by the Commander, Naval Military Personnel Command (NMPC-83) for approval. For members not in Entry Level Status, characterization of service as Honorable is not authorized unless the member's record is otherwise so meritorious that any other characterization would be clearly inappropriate.

3. Procedures

a. The Administrative Board Procedure (MILPERSMAN 3640300) shall be used. However, a commanding officer may process a member under the Notification Procedure (MILPERSMAN 3640200) when separation is on the sole basis of drug abuse as evidenced by urinalysis, (fitness for duty) the results of which, in accordance with OPNAVINST 5350.4 cannot be used to characterize service.

b. Request the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of the Notice of Administrative Board Procedure Proposed Action or Notification Procedure if appropriate.

c. Forward the processed case by letter of transmittal or message to Commander, Naval Military Personnel Command (NMPC-83). Ensure member's full name, rate and SSN have been indicated on each page of the case. Refer to NAVMILPERSCOMINST 1910.1B for message submission option in those cases wherein the member does not elect an administrative board. A medical officer's opinion or CAAC evaluation of the member's drug dependency as evaluated subsequent to the most recent drug incident must be included with the case submission.

Note that if basis for offense of drug abuse is evidenced solely by a court-martial conviction and the court-martial convening authority has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement in accordance with MILPERSMAN 3610200.5.

d. A member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he or she becomes eligible for that pay, unless his or her release is approved by the Secretary of the Navy.

 B . Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, Standards for Discharge Review, states, in part:
“9.2 Propriety of the Discharge

a. A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that:

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b. When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c. The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d. The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”

C. SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, paragraph 9.3, Equity of the Discharge, states, in part, that a discharge shall be deemed to be equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:

1. Quality of service, as evidenced by factors such as:

a. service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

b. awards and decorations;

c. letters of commendation or reprimand;

d. combat service;

e. wounds received in action;

f. records of promotions and demotions;

g. level of responsibility at which the applicant served;

h. other acts of merit that may not have resulted in formal recognitions through an award or commendation;

i. length of service during the service period which is the subject of the discharge review;

j. prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

k. convictions by court-martial;

l. records of nonjudicial punishment;

m. convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

n. records of periods of unauthorized absence;

o. records relating to a discharge in lieu of court-martial.

2. Capability to serve, as evidenced by factors such as:

a. Total capabilities. This includes an evaluation of matters such as age, educational level, and aptitude scores. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

b. Family and personal problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

c. Arbitrary or capricious actions. This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

d. Discrimination. This includes unauthorized acts as documented by records or other evidence.

PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, supporting documents 1 , facts, and circumstances unique to this case, the Board determined that the characterization of the applicant’s service is equitable. The discharge shall remain : UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.
         The applicant was discharged on 840427 under other than honorable conditions by reason of misconduct due to drug abuse (A, part IV). The record clearly documents the basis for the separation. The applicant's service was marred by continuous disciplinary infractions. The applicant, prior to initial enlistment in the Navy, affirmed that he had used illegal drugs. The applicant was awarded n onjudicial punishment (NJP) on 830411 for violation of the Uniform Code of Military Justice ( UCMJ) Article 86: two specifications of Unauthorized absence (UA). On 830510, he was awarded NJP for wrongful use of an illegal substance (marijuana). On 840223, he was awarded his second NJP for wrongful use of a controlled substance. After the applicant’s third NJP, the commanding officer initiated administrative discharge separation proceedings in accordance with Navy policy. The applicant was afforded the opportunity to exercise all of the rights of law, custom, and regulation to which he was entitled. He elected to waive all rights except the right to obtain copies of documents that would be forwarded to the discharge authority supporting the basis for the proposed separation. The commanding officer recommended separation with a characterization of service under other than honorable conditions by reason of misconduct due to drug abuse. CNMPC directed the applicant’s discharge under other than honorable conditions due to misconduct by reason of drug abuse. The discharge and characterization were consistent with Navy policy and standards of discipline, and were proper and equitable (B and C, Part IV).
The Navy's policy on drug usage is well known by all sailors. Indeed, upon enlistment every individual is briefed and signs a statement that processing for discharge under other than honorable conditions will be the result of drug abuse. The applicant enlisted with full knowledge of this policy and certainly heard the unequivocal nature of the policy reiterated many times.

In the applicant’s first issue, he states “I [received] an other than honorable discharge for my use of marijuana on or about 17 April, 1984 and 26 Jan 1984.” This issue is a statement of fact and not considered, by the Board, as requiring discussion.
In the applicant’s second issue, he states “I will [admit] smoking with fellow crew member’s 17 April 1984. But did not on or about 26 Jan 84 I was exposed to second hand smoke onboard the USS MACDONOUGH DDG-39. I was simply in the wrong place at the wrong time.” The applicant's illegal and continuous use of marijuana displayed his blatant disregard for the Navy’s policies and standard of performance, and warranted the discharge received. This issue provides no basis on which the Board will grant relief.
In the applicant’s third issue, he states “I was offered medical help but turned it down [which] I deeply regret. By turning down medical help I did not know that would be admission of guilt.” The applicant’s wrongful use of marijuana, as evidenced by positive urinalysis screenings, and his admittance during the drug dependence screening of using marijuana while on active duty; displayed a lack of commitment and a willful disregard for military good order and discipline. The record of service is devoid of evidence to suggest that the applicant should not be held accountable for his behavior. He committed the misconduct of record and received a proper and equitable discharge. No relief is warranted.

 Although not raised as an issue, the following information is provided for the applicant’s edification. In addition to the service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (C, Part IV). While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency. Those contributions that would be looked upon favorably by this, or any other Board, include educational pursuits, employment track record, being a contributing member of society and making a positive impact in the community through volunteer work. What the Board is looking for is positive, verifiable proof in the form of letters of recommendation/appreciation (from friends, employers, etc …), college transcripts (completed courses), a resume’, police checks, certificates of completion, proof of community service, etc. The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt at making amends for the misconduct he committed during the period of service under review. In addition, the applicant should provide some form of evidence that he has received treatment or has remained drug free.
A 15 year window during which applicants may appeal their discharges was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

Recorder’s NoteS:

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

 Notice of termination for Pre-Trial Intervention.
Letter from applicant.
 Copy of the applicant’s DD-214.
 Service related documents (6 pages).
Character reference letter from M__ K__, not dated.
Character reference letter from L__ B__, not dated.
Character reference letter from W__ E. C__, not dated.
Character reference letter from M__ P__, not dated.
Character reference letter from E__ P__, not dated.
Character reference letter from T__ W. K__, not dated.
Character reference letter from V__ T__, not dated.
Character reference letter from J__ L. C__, not dated.

PART VI - INFORMATION FOR THE APPLICANT
Decision

The Board 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.
         The Board noted administrative errors on the original DD-214. Block 28 should read: MISCONDUCT – DRUG ABUSE (USE). The DD-214 should be reissued or corrected as appropriate.
If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents 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
                  Building 36 Washington Navy Yard
                  901 M Street, SE
                  Washington, D.C. 20374-5023.

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