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NAVY | DRB | 1997_Navy | ND97-01389
Original file (ND97-01389.rtf) Auto-classification: Denied


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

ex AOAR, USN
Docket No. ND97-01389


 Applicant’s Request
The application for discharge review, received 970918, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary discharge review. The applicant 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.

THIS IS THE CORRECT SHELL FOR Misconduct - Drug abuse (Use) effective 900614 - 910814 .

THE FINDING FOR Drug abuse,
(3630620) IS EFFECTIVE FOR 900614 - 910814 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.       MY OTHER THAN HONORABLE DISCHARGE IS INEQUITABLE BECAUSE I MADE A VERY BIG MISTAKE WHEN I WAS 18 YEARS OLD AND DID NOT REALIZE THE CONSEQUENCES OF MY ACTIONS, THEREFORE ACTED LIKE A CHILD AND WOULD DO ANYTHING TO GO BACK IN TIME AND CHANGE SOME OF MY IMMATURE DECISIONS.
2.       MY OTHER THAN HONORABLE DISCHARGE IS INEQUITABLE BECAUSE I FEEL I AM PERFECT CANDIDATE FOR A CAREER IN THE MILITARY AND CAN NOT PURSUE MY DREAMS DUE TO A MISTAKE MADE SEVERAL YEARS AGO.
3.       MY OTHER THAN HONORABLE DISCHARGE IS INEQUITABLE BECAUSE YOU CAN SEE FROM MY ENCLOSED DOCUMENTS THAT I LEARNED FROM MY MISTAKE AND HAVE BEEN DRUG FREE EVER SINCE AND HAVE ALSO TRIED TO BETTER MYSELF.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                890317-890402    COG

 Period of Service Under Review :
Date of Enlistment: 890403                        Date of Discharge: 900815

 Length of Service (years, months, days):

         Active: 01 04 13
         Inactive: None

 Age at Entry: 17                                   Years Contracted: 4

 Education Level: 10                                 AFQT: 65

 NEC: AO 0000                              Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (1)     Behavior: 2.8 (1)                 OTA: 3.2

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Nonjudicial Punishment(s): 2              Court(s)-Martial: None

 Days of Unauthorized Absence: 2

 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


890316: Acknowledged pre-service marijuana use; waiver not required.

890404: At RTC SAN DIEGO, acknowledged the USN “Drug and Alcohol Abuse Statement of Understanding.” Briefed on Navy Policy on Drug and Alcohol Abuse, legal consequences of illicit drug use, effects of drug and alcohol abuse on discipline and combat readiness, physical and psychological effects of drug and alcohol abuse, and the Navy’s urinalysis screening program.

 890607:  Joined NATTC MILLINGTON TN.
890914:  NJP for violation of UCMJ, Article 86: absent from appointed place of duty 0800, 890819 and 0800, 890820, to wit: duty section muster.
         Award: CCU for 7 days suspended for 6 months, forfeiture of $163. No indication of appeal in the record.
890914:  Retention Warning: Applicant advised of deficiency in conduct evidenced by violation of UCMJ, Article 86: without authorization absent himself from his appointed place of duty, to wit: duty section IV muster on or about 0800, 890819, and 0800, 890820. Corrective actions identified and sources of assistance included. Advised: further deficiencies may result in disciplinary action and administrative separation. All deficiencies during current enlistment will be considered. Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in separation under other than honorable conditions. Receipt acknowledged.

 891110:          Joined USS AMERICA (CV-66) Norfolk, VA.

 900710:  NJP for violation of UCMJ, Article 112a: wrongfully used cocaine from 900524 to 900603.
         Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days, and reduction to E-1. No indication of appeal in the record.
900724:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
900724:  Applicant advised of rights and, having chosen not to consult with counsel, 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. Applicant did not object to the separation.
900730:  Medical evaluation for drug abuse found the applicant to be not drug dependent.

900803:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s verbatim comments: AOAR D_’s wrongful use of cocaine is unacceptable behavior and warrants separation. His continued presence is detrimental to morale and discipline on board America. AOAR D_ has no potential for further useful military service. I strongly recommend that AOAR D_ be discharged immediately from the naval service under other than honorable conditions by reason of misconduct due to drug abuse.

900807:  CNMPC directed the applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900815:  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 . 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 900815 under other than honorable conditions by reason of misconduct due to drug abuse (A, Part IV). On 890316, the applicant acknowledged pre-service marijuana. A waiver was not required for enlistment. The applicant was briefed at Boot Camp 890404 on the Navy’s drug and alcohol policy as set forth in OPNAVINST 5350, and acknowledged the USN Drug and Alcohol Abuse Statement of Understanding. He joined NATTC MILLINGTON TN on 890607 and received NJP for violation of UCMJ, Article 86: without authorization absent himself from his appointed place of duty, to wit: duty section muster on or about 0800, 890819 and 0800, 890820. A Retention Warning was also issued that day. On 891110, applicant joined USS AMERICA (CV-66). He received NJP 900710 for violation of UCMJ, Article 112a: wrongful use of cocaine from 900524 to 900603, and on 900724, applicant was notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and advised of his rights. Having chosen not to consult with counsel, he waived 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. A medical evaluation on 900730 found the applicant not drug dependent. On 900803, the Commanding Officer forwarded his recommendation for administrative separation under other than honorable conditions, and on 890807, CNMPC directed applicant’s discharge UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – drug abuse (Use). The Board found the applicant’s discharge to be proper and equitable (A and B, Part IV).

         In applicant’s issues 1 and 2, he states, “My other than honorable discharge is inequitable because I made aver big mistake when I was 18 years old and did not realize the consequences of my actions, therefore acted like a child … I am the perfect candidate for a career in the military…” The Board does not accept youth or immaturity as factors sufficient to exculpate the applicant from the consequences of his misconduct. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While the applicant may feel youth and immaturity were factors which contributed to his actions, the record of misconduct clearly reflects his willful disregard for the requirements of military discipline and demonstrates that he was unfit for further service. 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. No relief granted on these issues.

         In his final issue, the applicant requests that his discharge be recharacterized based upon his post-service conduct (B, Part IV). The Board reviewed the items submitted and determined the applicant’s efforts need to be more encompassing than those provided. He should produce evidence of continuing educational pursuits, a consistent employment record, evidence of community service, certification of non-involvement with civil authorities and additional proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient types of documentation of good character and conduct. Therefore no relief will be granted based upon this issue. A 15 year window is provided for the possible recharacterization of a discharge and the applicant is encouraged to employ this venue in order to obtain relief from his current discharge.
Recorder’s NoteS:

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

 Copies of DD form 214.
Copy of Certification of completion of ASE Refrigerant Recovery & Recycling Review and Certification Program.
          Copy of Automobile Service Excellence Certificate.
         Copy of Sales Training Program Certificate of Completion..
 Copy of Certificate of Accomplishment for completion of Suspension & Alignment Course.
          Copy of drug abuse screening results for 930826.
         Copies of service related documents (20pp).
         Copy of activities from 890403 to present.

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.

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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