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NAVY | DRB | 1997_Navy | ND97-01390
Original file (ND97-01390.rtf) Auto-classification: Denied


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

407-78-8752, ex MS3, USN
Docket No. ND97-01390


 Applicant’s Request
The application for discharge review, received 970917, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 851216 - 861005 . THE FINDING FOR Drug abuse, (3630620) EFFECTIVE FOR 851216 - 861005 ONLY.
SPN CODE HKK. THE SPN CODE IS EFFECTIVE 821001 - 860910, AND 860911 - 930627. A general discharge is written “UNDER HONORABLE CONDITIONS (GENERAL)”. SPN code change 860911 added “ENTRY LEVEL SEPARATION” AS A CHARACTERIZATION OF SERVICE.

PART I - APPLICANT’S ISSUES (verbatim)


 1. I request that my discharge be upgraded to general under honorable conditions.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  USN                        730728-770104    HON
          USN                        770105-830130    HON
          Inactive:        USNR (DEP)                730205-730227    COG

Period of Service Under Review :
Date of Enlistment: 830131                        Date of Discharge: 860923

 Length of Service (years, months, days):

         Active: 03 07 23
         Inactive: None

 Age at Entry: 28                                   Years Contracted: 4

 Education Level: 10                                 AFQT: 36

 NEC: MS 0000                              Highest Rate: MS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.64 (5)    Behavior: 3.68 (5)                OTA: 3.64

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, HSM, SSDR with Bronze Star

 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


 850421:          Joined USS FULTON AS-11

860805:          NAVDRUGLAB report indicated member tested positive for THC.

 860814:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on 860717.
         Award: Forfeiture of $498 per month for 2 months, restriction and extra duty for 45 days, reduction to MS3. No indication of appeal in the record.
860827:  Medical evaluation found the applicant to be a drug abuser, but not drug dependent.
860829:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the wrongful use of marijuana. Receipt acknowledged.
860829:  Applicant advised of rights. Chose not to consult with counsel certified under UCMJ Art 27B and elected to waive all rights except the right to obtain copies of documents that will be forwarded to the discharge authority supporting the basis for the proposed separation.
860912:  Drug and Alcohol Abuse Report: Marijuana abuse, used less than monthly while ashore and off duty, identified through urinalysis inspection. Medical officer determined applicant is not dependent and recommended separation from service. Commanding officer also recommended separation. Comments: Member has no history of self-referral. NJP on 860812 for violation of Article 112a: wrongful use of marijuana. Civil charges pending for sexual assault and risk of injury to a minor. Member has no potential for further naval service and is being administratively processed for separation.
860913:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer’s verbatim comments: MS3 D_ does not exhibit exceptional potential and desire for further useful service. Recommend expeditious discharge under other than honorable.

860917:  CNMPC directed the applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

860923:  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 10/85, effective 851216 - 861005), 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 1910.1 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.

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. 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, 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 860923 under other than honorable conditions by reason of misconduct due to drug abuse (A, Part IV). On 860805, NAVDRUGLAB message indicated member tested positive for THC. Applicant received NJP at Captain’s Mast on 860814 for violation of UCMJ, Article 112a: wrongful use of marijuana, and a medical evaluation on 860827 found him to be a drug abuser but not drug dependent. On 860829, applicant was notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, and was advised of his rights. He chose not to consult with counsel and 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. A Drug and Alcohol Abuse Report (DAAR) of 860912 indicated member was not dependent, used marijuana on a monthly basis while ashore and off duty, and the Commanding Officer recommended separation.
The DAAR also reported applicant had civilian charges pending for sexual assault and risk of injury to a minor. The Commanding Officer’s recommendation for Administrative Separation by reason of misconduct due to drug abuse was forwarded by message to NMPC on 860913, and on 860917, CNMPC directed applicant’s discharge UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use).

Applicant’s only issue is “I request that my discharge be upgraded to general under honorable conditions.” The Board found the applicant’s discharge to be proper and equitable (B, Part IV).

In addition to the service record review, the Board is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). While it is true the applicant cannot undo his past mistakes, he can contribute in a positive and significant way to society to warrant clemency. Contributions looked upon favorably by this 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 naval service under review. The 15 year window during which applicants may appeal their discharges was established to allow time for establishing themselves and making these substantial, documented life style changes and community contributions which could offset and make amends for the misconduct of record. The applicant has submitted no supporting documentation that would warrant clemency.


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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