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NAVY | DRB | 1997_Navy | ND97-01366
Original file (ND97-01366.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND97-01366


 Applicant’s Request
The application for discharge review, received 970912, requested that the characterization of service on the discharge be changed to general/under honorable conditions, and the reason for discharge be changed to “other than dishonorable”. The applicant requested a documentary discharge review and listed no representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 981013. 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.

THIS IS THE CORRECT SHELL FOR Misconduct - Drug abuse (Use) effective 861215 - 870614 .

THE FINDING FOR Drug abuse,
(3630620) IS EFFECTIVE FOR 861215 - 870614 ONLY.

SPN CODE HKK. THE SPN CODE IS EFFECTIVE 860911 - 930627. A general discharge is written “UNDER HONORABLE CONDITIONS (GENERAL)”.

PART I - APPLICANT’S ISSUES (verbatim)


1.       I have been rehabilitated, and have been sober for 10 yrs.
2.       Two months after being discharged I entered into St. Marys (rehabilitation center) but wishes I had the will power 2 months prior so I could have continued service w/the Navy.
3.       I would like my other than honorable discharged changed, because I have a disease that I have now controlled 10 years.
4.       I would like my other than honorable discharge changed, in hopes the Navy would allow me to reenlist as a reservist.
5.       I would like my other than honorable discharge changed because I have a disease that was unrecognized from the navy and was evaluated from St. Marys hospital as being chemical dependant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                850930 - 851020  COG

 Period of Service Under Review :
Date of Enlistment: 851021                        Date of Discharge: 870223

 Length of Service (years, months, days):

         Active: 01 04 03
         Inactive: None

 Age at Entry: 19                                   Years Contracted: 4

 Education Level: 13                                 AFQT: 43

 NEC: DG- 9700                                     Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.60 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: B“E”R

 Nonjudicial Punishment(s): 2              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


850924:  Acknowledged USN Drug and Alcohol Abuse Statement of Understanding.

851021:  Joined CRUITRACOM San Diego, CA.

851022:  Briefed on the Navy’s drug and alcohol abuse policy as set forth in OPNAVINST 5350.

 860212:          Joined USS REID (FFG-30) San Diego, CA.

 860414:  NAVDRUGLAB San Diego, CA reported that the applicant’s urine sample tested positive for PCP/THC.
860415:  NJP for violation of UCMJ, Article 112a: Wrongful use of PCP/THC.
         Award: Forfeiture of $295 per month for two months, restriction and extra duty for 45 days, and reduction to E-1. There was no indication of an appeal in the record.

860701:  Drug and Alcohol Abuse Report: Submitted for marijuana and PCP abuse based on a positive, Random urinalysis on 860407; medical officer diagnosed the applicant as not drug dependent and recommended Level I treatment; CO concurs and recommends continued naval service.

861103:  Retention Warning: Advised of deficiency in conduct evidenced by drug abuse; notified of corrective actions and assistance available; advised of the consequences of further deficiencies, and issued a discharge warning. Receipt acknowledged.

870123:  NAVDRUGLAB San Diego, CA reported that the applicant’s random urine sample tested positive for cocaine. [Extracted from CO’s message.]

870203:  NJP for violation of UCMJ, Article112a: Wrongful use of cocaine.
         Award: Forfeiture of $320 per month for two months, restriction and extra duty for 45 days, and reduction to E-1. There was no indication of an appeal in the record.

870204:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse [Extracted from CO’s message.]
870204:  Applicant advised of rights and having chosen not to consult with counsel certified under UCMJ Art 27B, elected to waive all rights. Applicant did not object to the separation. [Extracted from CO’s message.]
870205:  COMDESRON 13 Medical Officer diagnosed the applicant as not drug dependent and recommended separation from the Navy.

870205:  Substance Abuse Report: Submitted for cocaine abuse based on a positive, Random urinalysis; medical officer diagnosed as not drug dependent and recommended separation from the Naval Service; CO concurs.
870206:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer’s verbatim comments: SR R_ was given a fair opportunity to resolve his drug-related problems after his positive urinalysis in April of 1986. His performance since that time has been outstanding. His second positive urinalysis was unexpected and unfortunate. However, it mandates separation under other than honorable conditions as soon as possible. Request most expeditious disposition possible as R_ will be deploying in 12 days.

870212:  BUPERS directed the applicant’s discharge other than honorable by reason of misconduct due to drug abuse (use).

870223:  Applicant discharged UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.
RECORDER’S NOTE:

 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 7/86, effective 861215 - 870614), 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 tantamount to findings of guilt), 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 1910.1 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 six 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 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.

e. Inactive duty members, whose urine samples are tested positive for drug abuse, will be processed using notification procedures. administrative board procedures are appropriate for other incidents of drug abuse, e.g., drug trafficking.

B. The 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. The 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 that 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.

D. The 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, states, in part:

“2.5 Authority for Review of Naval Discharges; Jurisdictional Limitations

a.       The Board shall have no authority to:
(1)      review a discharge or dismissal resulting from a general court-martial;

(2) alter the judgement of a court-martial, except that the discharge or dismissal awarded may be changed for purposes of clemency;

(3)      revoke any discharge or dismissal;
(4) reinstate a person in the Naval Service;

(5) recall a former member to active duty;

(6) change a reenlistment code;

(7) make recommendations for reenlistment to permit entry in the naval service or any other branch of the Armed Forces;

(8) cancel or void enlistment contracts; or

(9) change the reason for discharge from or to a physical disability.

 b. Review of naval discharge shall not be undertaken in instances where the elapsed time between the date of discharge and the date of receipt of application for review exceeds fifteen years. ”

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 reason for and the characterization of the applicant’s discharge is equitable. The discharge shall remain : UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.
         The applicant was discharged on 870223 under other than honorable conditions by reason of misconduct due to drug abuse (A, Part IV). The Navy’s policy on drug abuse is well know by all Sailors. Indeed upon enlistment, the applicant acknowledged the USN Drug and Alcohol Abuse Statement of Understanding, and again at Boot Camp, he was briefed on the Navy’s drug and alcohol policy as set forth in OPNAVINST 5350. On 860414, the applicant tested positive for PCP/THC. On 860415, he received his first NJP for drug abuse. On 861103, the applicant received a Retention Warning for drug abuse and remained on active duty. On 870123, he tested positive for cocaine. On 870203, the applicant received his second NJP for drug abuse. On 870204, he was informed of his commanding officer’s (CO’s) intention to recommend him for administrative separation (ADSEP) under other than honorable conditions for misconduct due to drug abuse as evidenced by his two NJPs. The applicant chose not to consult with legal counsel prior to waiving all his rights. On 870205, COMDESRON 13 Medical Officer diagnosed the applicant as not drug dependent. On 870206, the applicant’s CO recommended him for ADSEP under other than honorable conditions for misconduct due to drug abuse. On 870112, CNMPC directed the applicant’s discharge UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use). The Board found the applicant’s discharge to be both proper and equitable (B and C, Part IV).
In the applicant’s issues 1 through 3, he writes, “I have been rehabilitated, and have been sober for 10 yrs. Two months after being discharged I entered into St. Marys (rehabilitation center) but wishes I had the will power 2 months prior so I could have continued service w/the Navy. I would like my other than honorable discharged changed, because I have a disease that I have now controlled 10 years.” The Board does not accept alcohol addiction as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds the applicant that Sailors who commit offenses while drinking are still responsible for their actions and must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.
         The Board would like to commend the applicant on his efforts in overcoming his alcohol problem and redirecting his life; however, alcohol abuse was not the basis for his separation nor was there any reason to believe that alcohol abuse had anything to do with the applicant’s PCP, THC and cocaine use which formed the basis for his discharge for drug abuse.

 In the applicant’s issue 4, he writes, “I would like my other than honorable discharge changed, in hopes the Navy would allow me to reenlist as a reservist.” The Board has no authority to change reenlistment codes or make recommendations to permit reentry into the Naval Service or any other of the Armed Forces (D, Part IV). Re-enlistment policy of the Naval Service is promulgated by the Commander, Naval Personnel Command (NPC-3282), 5720 Integrity Drive, Millington, TN 38055-0000, and the Commandant, United States Marine Corps, Code MMPE-5, Washington, DC 20380-3001. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.
         In the applicant’s issue 5, he writes, “I would like my other than honorable discharge changed because I have a disease that was unrecognized from the navy and was evaluated from St. Marys hospital as being chemical dependant.” The Board has no authority to change reenlistment codes or make recommendations to permit reentry into the Naval Service or any other of the Armed Forces (D, Part IV). Re-enlistment policy of the Naval Service is promulgated by the Commander, Naval Personnel Command (NPC-3282), 5720 Integrity Drive, Millington, TN 38055-0000, and the Commandant, United States Marine Corps, Code MMPE-5, Washington, DC 20380-3001. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.
Recorder’s Note:

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

          Copy of the applicant’s DD Form 214
          St. Mary’s Hospital Rehabilitation Center Narrative Report dtd 870508 (4 pages)
         PARMA Continuing Education Certificate of Completion dtd 900522
 Carrier Achievement Award for the completion of AS I LIVE AND BREATH dtd 930324
          CLMI Construction hazard Communication Fundamentals Program Hazard Communication Training Certificate of Completion dtd 940224
         U.S. Department of Labor, Occupational Safety and Health Administration Construction Safety & Health Certificate of Course Completion dtd 9509
         United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Metal Trade Trainee Card dtd 930622
         United Association Certificate of CPC Qualification dtd 941028
 Letter of Recommendation from parents (2 pages)
          Character Reference letter from applicant’s wife
         State of Ohio, Coshocton County Sheriff’s Office Police Records Check dtd 970925
         State of Ohio, Medina Police Department Letter of Recommendation dtd 971020
 Extracts from Service Record (2 pages)
          State of Ohio, Department of Human Services Certificate to Board Children effective 960415 through 970415.

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 discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

If you believe that the decision in your case is unclear, not responsive to the issues that 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 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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