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NAVY | DRB | 1999_Navy | ND99-00017
Original file (ND99-00017.rtf) Auto-classification: Denied


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

ex-DCFR, USN
Docket No. ND99-00017

Applicant’s Request
The application for discharge review, received 980929, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990920. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB 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.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. At the time I was having family problems. With a new baby & other circumstances, I had to get out so as not to lose my son. This was one of 3 options given to take so that I could get back to the states. Is it, also, out of the question to re-enlist due to these past circumstances?
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     871030 - 880208  COG

 Period of Service Under Review :
Date of Enlistment: 880209               Date of Discharge: 891116

 Length of Service (years, months, days):

         Active: 01 09 08
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rate: DCFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80        Behavior: 3.20            OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

881007:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of $200 pay per month for 2 months, restriction and extra duty for 45 days. Forfeiture suspended for six months. No indication of appeal in the record.
881216:  DAAR: Applicant diagnosed by competent medical authority as drug
dependent (marijuana).

881222:  Retention Warning: Advised of deficiency (drug abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

881229:  Applicant signed a statement acknowledging he was diagnosed as alcohol dependent and offered Level III Alcohol Rehabilitation. Applicant declined Level III.

890206:  Applicant completed Level III treatment.

890623:  NJP for violation of UCMJ, Article 112a: Wrongful use of a schedule I controlled substance.
Award: Forfeiture of $200 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
890705:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse as evidenced by two Commanding Officer’s Non-Judicial Punishment held on 6 October 1988 and 23 June 1989.

890706:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
890725:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (use). Commanding officer’s comments: DFCR (applicant's) drug abuse as evidenced by his marijuana use, violation of Article 112a, is in direct violation of the Navy’s no tolerance drug policy. Due to DCFR (applicant's) failure to follow the Navy’s drug policy and his lack of ability to conform to the minimum standards of conduct, DCFR (applicant) should be separated under Other Than Honorable conditions.

891005:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (use).

891116:  Pursuant to COMNAVMILPERSCOM Washington D. C. message dtd 051910z OCT 89, you are advised that you have the right to request a minimum of 30 days in-patient treatment prior to your discharge. You may request treatment at a VA hospital nearest your home of record or place of residence. The applicant did not elect VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891116 under Other Than Honorable conditions for Misconduct due to Drug abuse (Use) (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In the applicant’s issue 1, the Board found this issue to be without merit. The Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command. In fact, the Board found that the applicant’s age, education level and test scores were sufficient to qualify him for enlistment. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B. Under the Manual for Courts-martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112a, wrongful use, possession, etc., of controlled substances, if adjudged at a Special Courts-Martial.

C. 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.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues 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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     



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