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NAVY | DRB | 1997_Navy | ND97-01344
Original file (ND97-01344.rtf) Auto-classification: Denied


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

ex ADAN, USN
Docket No. ND97-01344


 Applicant’s Request
The application for discharge review, received 970909, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 980928. 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. Read letter.
To Whom it may Concern
To the review Board

 As I (applicant) did write K_ L_ T_ a letter to ask her to Please see if she could help me. And she did so kindly write back.
I was in the U.S. Navy from June 85 to May, 1988 And was discharged with an Honorable Discharge. I went back into the U.S. Navy form June 1989 to Aug 1991 I was in (Operation Desert Shield And Desert Storm.)
I also received a Number of (Ribbon’s) and (letters) of Accomendations.
When I returned to the States after the war was over. My Command was DeCommishened VA-46 I just had two months’ left on my enlistment and was transferred to VFA-860. I was so happy to be making it back home after going through rough times a bunch of guy’s had some pot I tried it with them. I had an urinlais test the next day and I failed the test.
I relieze what a bad mistake I made I just did not stop and think at that time we were all so happy to be back and the war was over and we were on home ground again. When I finished my enlistment the Navy gave me Other Than Honorable Discharge. I know I was very wrong but it was to late I have never been in to any type of trouble before this happened and since this happened it taught me a good lesson.
I was a 3.9 Sailor and a 4.0 Scale So they put me back E-3 but I did finish my Enlistment to the last day. I have been clean and I do not and have not tried it again. I have had some problems getting jobs because of that kind of Discharge Right now I am driving a tractor and trailer Truck from a Company out of Illinois & would just like to get my Discharge upgraded if possible to an Honorable Discharge. Even the Lowest grade would be better then the one I have now.
As I did serve my Country well and make no mistake my country came first. And also before & I went into the Navy I put four years of ROTC through High School.
 Our President admitted he had smoked pot he never served one day for our country, and today he is our president. And also our senator here in Florida C_ M_ admitted he had smoked pot and never served our country and yet he is our Senator. By serving my country and I tried it I get a Other Than Honorable, at least I thought they could of given me another chance as I never have touched the stuff again. I think it was a harsh sentence by giving me Other than Honorable they could of given me a Second chance but they chose not to do so. I think because my time was almost finished. So I am asking you the Review board to Please help me if possible and upgrade my discharge to honorable. I think I deserve that much. As I did served my country with no problems at all. I just mad a mistake I wish I could go back before that time and I sure would of not done what I did. But as I said we all were so happy to be back home on home soil. I just did not think at that time but I sure have though a lot since then. What a stupid thing to do so to the Review Board I would ever be so grate full for anything you could do for me to just to get my discharge up graded. I will take this time to Thank You So Much for taking the time just to read my letter and read my papers. When I was in service, I was on the John F Kennedy. I hope who ever reads this letter and my papers will take and give me another chance to up grade my discharge. So I still can be proud. I lost a lot of my pride after that it made me fill so ashamed to of done what I did it hurt me very much. But as a Good Sailor as I Was with No Problems But just to serve my Country and I did, I hope you can fill like I do deserve a second chance. And I know it bothers me so much to think I would let my self to do such a stupid thing.
So Thank You and all who review my letter and papers. I am asking once again to please try and fill I am the person I was in the war and I still am. I just hope you fill in your Heart’s I do deserve an Honorable Discharge if not the lowest so it is Honorable.
Sincerely, I Thank You (applicant)
I got several achievements Ribbons & Medal’s


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  USNR                       850612-880411    HON
         Inactive:        USNR                       840614-850611    Active Mariner
                           USNR                       880412-890522    HON
 USNR     (DEP)             890523-890712    COG
Period of Service Under Review :
Date of Enlistment: 890713               Date of Discharge: 910812

 Length of Service (years, months, days):

         Active:          02 01 00
         Inactive:        None

 Age at Entry: 23                                   Years Contracted: 2

 Education Level: 12                                 AFQT: 48

 NEC: AD 0000                              Highest Rate: AD3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.93 (3)    Behavior: 2.76 (5)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NUC, SASM, SSDR (2), BER, OSM

 Nonjudicial Punishment(s): 1              Court(s)-Martial: None

 Days of Unauthorized Absence: None

 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


 840601:  Signed DD Form 1966 acknowledging that he had used drugs prior to his service but would not abuse any illegal drugs or controlled substances while in the service of his country.

840601:  Signed Drug and Alcohol Abuse Statement of Understanding, which states “If I illegally or improperly use or possess alcohol or drugs, including marijuana, appropriate disciplinary and/or administrative action may be taken against me. In the case of drugs, this action may include trial by court-martial or administrative separation from the Navy. Administrative separation for drug abuse or separation in lieu of trial by court-martial could result in an other than honorable discharge. conviction by a court-martial of a drug related offense may lead to punitive separation. This can result in denial of education benefits, home loan assistance, and other benefits administered by the VA. Additionally, a person receiving such a separation of discharge can expect to encounter substantial prejudice in civilian life in situations where the character of separation or discharge received from the Armed Forces may have a bearing.”

850612:  Acknowledged having seen the movie “welcome Aboard” or “Right, Right, Right On”, and “Drug Abuse – Not in My Navy.”

850519:  Signed Drug and Alcohol Abuse Statement of Understanding, which states “If I illegally or improperly use or possess alcohol or drugs, including marijuana, appropriate disciplinary and/or administrative action may be taken against me. In the case of drugs, this action may include trial by court-martial or administrative separation from the Navy. Administrative separation for drug abuse or separation in lieu of trial by court-martial could result in an other than honorable discharge. conviction by a court-martial of a drug related offense may lead to punitive separation. This can result in denial of education benefits, home loan assistance, and other benefits administered by the VA. Additionally, a person receiving such a separation of discharge can expect to encounter substantial prejudice in civilian life in situations where the character of separation or discharge received from the Armed Forces may have a bearing.
850613:  Applicant certified he had read and understood all of the information contained in the Navy "Drug Abuse Statement of Understanding". Specifically, the consequences of illicit drug use, effects of drug and alcohol abuse on discipline and combat readiness, consequences of drug trafficking, physical and psychological effects of drugs and alcohol abuse, and the Navy’s urinalysis screening program.

890713:  Joined CRUITRACOM NTC Orlando, FL.
890802:  Applicant extended enlistment for 1 month to incur sufficient obligated service to accept orders.
890811:          Joined ATKRON FOUR SIX, NAS Cecil Field, FL.

910603:  Joined STRKFITRON EIGHT SIX, NAS Cecil Field, FL.

 910614:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, on 4 June 1991, as evidenced by random sampling urinalysis, to wit: marijuana.
         Award: Forfeiture of $439 per month for 2 months, restriction and extra duty for 45 days, reduction to ADAN. No indication of appeal in the record.
910614:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. Receipt acknowledged.
910614:  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. Receipt acknowledged.
910624:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. No rehabilitation is needed. Admits to smoking marijuana on two occasions, once before he joined and once again in the last week of May 91.
910625:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer’s verbatim comments: This command fully supports the Navy’s zero tolerance for drugs. We cannot entrust the maintenance of multimillion dollar aircraft to individuals who voluntarily submit their bodies to any illegal substance. ADAN (applicant) made a conscious decision to abuse drugs, and in doing so he failed this command and the Navy. We must send a signal to those individuals who fail in their obligations and we must support the outstanding Navy members who provide role models for the young enlisted. Therefore, I strongly recommend ADAN (applicant) be separated from the Naval Service under Other Than Honorable Conditions.

910812:  BUPERS directed the applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

910812:  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 15560A, Change 11, effective 900614 - 910814), 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 based upon one or more military offenses or civil convictions (including actions that amount to findings of guilt), for 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 under 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, under 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 1910.1 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. If last incident of drug abuse is more than 6 months prior to initiation of processing, a re-evaluation for dependency need not be done.

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 2 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.

e. Inactive duty members, whose urine samples are tested positive for drug abuse, will be processed using notification procedures or administrative board procedures as appropriate.
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 910812 under other than honorable conditions by reason of misconduct due to drug abuse (A, Part IV). The record clearly documents the basis for separation. On 910614, the applicant was awarded NJP for wrongful use of a controlled substance (marijuana). After the 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 chose not to consult with counsel then 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 and submit a statement of rebuttal. The commanding officer recommended separation with a characterization of service under other than honorable conditions by reason of misconduct due to drug abuse. BUPERS directed the applicant be discharged UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – drug abuse (Use). The discharge and characterization were consistent with Navy policy and standards of discipline, and were proper and equitable (B and C, Part IV).
The applicant was thoroughly familiar with the Navy's policy and consequences regarding the illegal use of drugs and the consequences of violating that policy. When he enlisted he signed a document which stated, in part, that he had abused drugs but would not abuse any illegal drugs or controlled substances while in the service of his country. On five separate occasions, he signed statements that he had been briefed on the Navy’s drug policies and certainly heard the unequivocal nature of that policy reiterated many times. The applicant's illegal use of marijuana, as evidenced by the positive urinalysis and his admittance of using marijuana, displayed a lack of commitment and a blatant disregard for the Navy’s policies and standard of performance, and warranted the discharge received.

The applicant did not provide specific issues to the Board but did provide a letter. From this letter, the Board gleaned the following issues: 1. He feels he should have received a better discharge because he was a 3.9 sailor (on a 4.0 scale) and served in Desert Shield and Desert Storm, 2. Wants an upgrade because he has problems finding jobs.

The first issue implies that a permissive doctrine exists whereby one in the military, in light of good service, is allotted a single misdeed without penalty or stigma, regardless of how notorious the offense. There is no precedent, within this Board’s review, for minimizing the misconduct of record. As with each case before us, the seriousness of a single act must be judged on its own merit. Certain forms of misconduct are so detrimental to good order, discipline, and appropriate standards of performance and conduct that processing for administrative separation is mandatory; drug abuse falls into this category. As stated in the preceding paragraphs the applicant was fully aware of the consequences of illegal drug abuse, he chose not to heed the warnings, committed the misconduct and was punished accordingly. No relief is warranted.

         In the second issue, while the Board empathizes with the applicant, this issue provides no basis for relief. The hiring practices of individual employers are outside the purview of this Board. There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunity. To permit relief an error or injustice must be found in the discharge. None was found in this case.
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. 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 this case, the applicant m ust provide proof that he has received treatment for his drug abuse problem and has remained drug free.
The 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:

 Copy of Letter of Commendation.
Copy of Letter of Appreciation dated 25 Mar 91.
Copy of Navy Unit Commendation for 17 January 1991 to 25 February 1991.
          Copy of Enlisted Performance Evaluation Report for period 90Jul01 to 910603.

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 12a should read: 89 JUL 13, Block 12c should read: 02 01 00. 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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