Search Decisions

Decision Text

NAVY | DRB | 1999_Navy | ND99-00027
Original file (ND99-00027.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00027

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 990927. After a thorough review of the records, 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I, (applicant), respectfully submit request for change of my discharge from Other than Honorable to General Under Honorable Conditions. In 1991 I tested positive on a command urinalysis. At that time, I was informed that I would be sent to the Command CAAC for a screening and possible treatment. My unit was deployed to the Gulf during the war. Upon return I did not receive any screen or treatment. In 1992 I tested positive again. I was discharged under the zero tolerance policy. Prior to entering the Navy, I was not involved in drug use. I was also prior to these tests, considered a 4.0 Sailor and had received honors for my duty.

Since my release from active duty, I have not been involved in any felony or misdeameanor activities. I am asking for an upgrade in order to obtain the VA benefits I am a veteran who served proudly in time of war and the type of discharge I received, has left its mark against me. I feel this is unjust and that if I had received the proper treatment opportunity at the time, it might have made a difference. Please consider my request for upgrade.

2. My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good.

3. I received awards and decorations.

4. I received letters of commendation.

5. I had combat service.

6. My record of promotions showed I was generally a good servicemember.

7. I have been a good citizen since discharge.

8. Medical of physical problems I had impaired my ability to serve.

9. Certain other problems impaired my ability to serve.

 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)     891212 - 900102  COG

 Period of Service Under Review :
Date of Enlistment: 900103               Date of Discharge: 920410

 Length of Service (years, months, days):

         Active: 02 03 08
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 25

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (3)    Behavior: 3.20 (3)                OTA: 3.47

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, JMU, SASM w/Bronze Star

 Days of Unauthorized Absence: 10

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900414:  Applicant to unauthorized absence 0001, 14Apr90.

 900417:  Applicant surrendered from unauthorized absence, 1130, 17Apr90 (3 days).
901226:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 11Dec90 to 1607, 18Dec90 (7 days), violation of UCMJ Article 87: Missing ship's movement on 11Dec90.
         Award: Forfeiture of $362 per month for 2 months, restriction for 15 days, reduction to E-1. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
901231:  Retention Warning from USS BRISTOL COUNTY (LST-1198): Advised of deficiency (unauthorized absence and missing ship's movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910315:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine. Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
910422:  Retention Warning from USS BRISTOL COUNTY (LST-1198): Advised of deficiency (cocaine use), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
910422:  CAAC evaluation: Recommended applicant receive Level I treatment, attend CAAC Level II counseling program, attend Navy Alcohol and Drug Safety Action and command monitored urinalysis surveillance.

910427:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, 15Mar91, ashore off duty, random urinalysis. CAAC and physician found applicant not dependent and recommended Level II treatment. Commanding officer recommended Level II treatment.

920117:  Retention Warning (no further information found in service record). [Extracted from commanding officer's message dated 26Mar92.]

920309:  NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 920226, tested positive for cocaine.
920310:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.

920313:  USS BRISTOL COUNTY (LST 1198) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse as evidenced by three or more nonjudicial punishments in your current enlistment and all drug incidents in your current enlistment.
920313:          Applicant advised of his rights and having consulted 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.
920319:  Medical evaluation: Cocaine dependent and alcohol abuse. Applicant offered VA treatment.

920328:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. Commanding officer’s comments: (verbatim): SR (applicant) has failed to meet even minimal acceptable standards of behavior. Following his first NJP for cocaine use, he was deemed a member with exceptional potential and retained. Not only has his performance not come close to his potential, but he continued to use cocaine despite his certain knowledge of the consequences. Concur with separation under other than honorable conditions.

920402:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 920410 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In issues 1 and 2, the applicant states that he was “considered a 4.0 sailor”. The Board, after reviewing the applicant’s record, found that the applicant did receive high marks on his performance evaluation covering 91FEB01-92JAN31. However, on the applicant’s performance evaluation covering 92FEB01-92APR10, several marks were below 3.0. The Board will not grant relief on this issue.
Also in issue 1, the applicant asked for “an upgrade in order to obtain VA benefits”. The Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility. There is no requirement or law that grants recharacterization based solely on the issue of obtaining veteran's benefits. This is not an issue for which the Board will grant relief.
Thirdly in issue 1, the applicant states that he had not “received the proper treatment opportunity at the time”. The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

In response to issues 3, 4, 5, and 6, the Board found that these were issues that do not have any bearing toward the applicant’s reason for discharge. Relief will not be granted on these issues.

In issue 7, the applicant stated that he has “been a good citizen since discharge”. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

In issues 8 and 9, the applicant states that “medical or physical problems” and “certain other problems impaired my ability to serve.” A medical, diagnosis on active duty or during post-service, and whether proper or improper, is not an issue upon which this Board can grant relief. When reviewing a discharge, the Board does consider the extent to which a medical problem, diagnosed or undiagnosed while on active duty, might effect an applicant's performance and ability to conform to the military's standards of conduct and discipline. The Board does not consider the circumstances surrounding the applicant's diagnosis or any medical treatment given to the applicant to be of sufficient nature to exculpate the applicant from his misconduct of record. In fact, the Board has seen no connection between the applicant's medical condition and his misconduct which began before his medical condition and continued after his condition was resolved. Relief is not warranted. Also, after a thorough review of the applicant’s record, no other “problems” were noted by the Board.

Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B. 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.

C. 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.

D. 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 St SE Rm 309
                  Washington, D.C. 20374-5023     

Similar Decisions

  • NAVY | DRB | 2005_Navy | ND0501160

    Original file (ND0501160.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application:“I would like the board to review my discharge & change it to honorable and/or change my RE-4 code to RE-3 or RE-2. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

  • NAVY | DRB | 2000_Navy | ND00-00083

    Original file (ND00-00083.rtf) Auto-classification: Denied

    ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.920108: Alcohol Abuse Evaluation: Alcohol dependent. 920227: BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction. At this time, the applicant has not provided any documentation of good character and conduct.

  • NAVY | DRB | 1999_Navy | ND99-01043

    Original file (ND99-01043.rtf) Auto-classification: Denied

    Treatment recommendation - CAAC out-patient treatment program (Level II) and AA meetings two times weekly.920123: NAVDRUGLAB, GLakes, IL: Urinalysis sample taken on 09Jan92, received by lab on 14Jan92, applicant positive for cocaine/marijuana.920206: NJP for violation of UCMJ, Article 112a(2 specs) wrongful use of cocaine on or about 06DEC91 to 06Jan92 and wrongful use of marijuana on or about 06DEC91 to 06Jan92.Award: Forfeiture of $457.50 per month for 2 months (1 months suspended for six...

  • USMC | DRB | 2001_Marine | MD01-01202

    Original file (MD01-01202.rtf) Auto-classification: Denied

    MD01-01202 Applicant’s Request The application for discharge review, received 010920, requested that the characterization of service on the discharge be changed to general/under honorable conditions. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. The...

  • NAVY | DRB | 1999_Navy | ND99-00085

    Original file (ND99-00085.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 (2 copies) Letter to applicant from Board for Correction of Naval Records without enclosures Copy of Enlisted Performance Evaluation Report dated 88Feb27 to 89Jan31 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 870930 - 871022 COG Period of Service Under Review...

  • NAVY | DRB | 1999_Navy | ND99-00072

    Original file (ND99-00072.rtf) Auto-classification: Denied

    I didn't know how to cope with the loss of my mother at the time of my active duty. Sincerly Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 Twelve pages from applicant's service record PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 840531 - 840717 COG Period of Service Under Review :Date of Enlistment: 840718...

  • NAVY | DRB | 1999_Navy | ND99-00504

    Original file (ND99-00504.rtf) Auto-classification: Denied

    920323: Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of alcohol abuse subsequent to inpatient treatment within the last 12 months. No indication of appeal in the record.920514: BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. You may obtain a copy of DoD Directive 1332.28 by writing to: DA Military Review Boards...

  • NAVY | DRB | 2001_Navy | ND01-00542

    Original file (ND01-00542.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT ex-OSSA, USN Docket No. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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 (C and D).The applicant’s issue states: “I am seeking to obtain an upgrade in my discharge to general/under honorable conditions.

  • NAVY | DRB | 2000_Navy | ND00-00622

    Original file (ND00-00622.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION 920313: Special Court Martial [trial date 920313] Charge I: violation of the UCMJ, Article 86, Specification 1: Absent in desertion from 910925 – 920128, [125 days/A.] He was found guilty of dereliction of duty, destruction of government property, breaking restriction, unauthorized absence, drug abuse and desertion.

  • NAVY | DRB | 2002_Navy | ND02-01016

    Original file (ND02-01016.rtf) Auto-classification: Denied

    Due to his poor military performance and continued drug and alcohol abuse FR (Applicant) has no potential for future naval service.900427: Drug and Alcohol Screening: Applicant is psychologically drug/alcohol dependent and recommended for separation and VA treatment for dependence. 900522: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, drug abuse, and...