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NAVY | DRB | 1999_Navy | ND99-00043
Original file (ND99-00043.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-00043

Applicant’s Request
The application for discharge review, received 981006, requested that the characterization of service on the discharge be changed 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 – Drug Abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.       (Applicant) (SSN deleted) enlisted Mar 11-97 to Nov 5-97. I arrived to NCTC See Bee base in Oxnard without orders which caused a problem from the start. And had to wait 7 mo. For my A-school. Durring these months I had disipline that had barely any real warning without writing up chits, which later would cause a problem. Most were for small reasons like eating on duty, or watch. Eventually they would add up. Because I had so many chits my command would already know I had trouble. So when I started A-school I had a reputation. Taking school my teacher singled me out and made fun. But I had determination to pass, but phase 1 I failed two tests phase 2 I failed which drops you out automatically which those people they sent to the fleet. Now that I was out of school and had report chits I was informed that my command would send me to the brig because of these chits. They threatened me. And put me on restriction with extra duty. After I was kicked out I was offered marijuana in the barracks. And was written up for accessory to having marijuana in the barracks. Which I didnt have any. Then my command gave me a Summary Court marshal and was sentenced for 30 days time in Miramar. I tested pos in the brig for meth. Because someone off base gave me drugs that I brought on base. And did 30 more days when I finished 30 more days set the other crime. After completion of my sentence for 60 days hard time at Miramar. I returned awaiting court marshal as a restricted person, still doing extra duty, only because I had to wait on legal hold. To act as a witness. I awaited my paper work to get out of the Navy. I don’t understand why I had restriction those extra days but after completion I had about 2 weeks until I got out.
I ask for this upgrade to promote this O.T.H. to under honorable conditions. And be entilted to rejoin the Army National Guard or the Navy again. I ask to be eligible to join the military and to have the eligibility to work in a Federal or government establishment again. I have no record by the police on the outside, except one that I on Aug 20 wrongfully cashed a check with 0 funds that weren’t mine. But I served 30 days jail time. I never done or have a record of any felonies or drugs, ect. Only the 1 of a mis-demenor. During Highschool I had Jr ROTC. That gave cred in the military. I had A’s & B’s through school. Willing to do community service through ROTC. Like “Toys for Tots” Christmas “95” in Las Vegas my Highschool was Rancho Highschool Las Vegas Nev 89030 phone 799-7000 area code (702) and have nothing but good reports from there. Also I work for good people and enjoy it. Also since this incident in the Navy I have learned that those things they were teaching were all for the better and now I want to be eligible to go back in even in the Reserves. I know the policy zero tolerance very well and I hope to get another chance and to show I ma serious about the no drugs in the Navy. Now I am willing to climb uphill and do the challenge that proves I am responcible, dependable, and I work hard. And I have ability to work hard and on time to be on the team again. I respect this opportunity for that reason and that this chance may entitle me for an upgrade. I feel that I need this upgrade and I understand all the problems caused which caused me to be kicked out. I have worked on these problems, since my discharge and am willing to show you my improvements. Right now I am physically fit, I work daily at a bar and wait tables. I am working on getting a car and house. I feel that the outside from the military is harder than being in.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970913 – 970310  COG

 Period of Service Under Review :
Date of Enlistment: 970311               Date of Discharge: 971113

 Length of Service (years, months, days):

         Active: 00 08 03
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)             Behavior: 1.00 (1)                OTA: 1.00

 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 :
970615:  Counseling: Advised of deficiency (UA duty section muster), notified of corrective actions and assistance available.

970618:  Counseling: Advised of deficiency (unsat uniform appearance), notified of corrective actions and assistance available.

970724:  NJP for violation of UCMJ, Article 86 (7 specs): Unauthorized absence, Spec 1 - UA from 0730 duty section muster, 15 June. Spec 2 - UA from 1245 muster, 17 June. Spec 3 - UA from unit, 2200, 1 July - 0045, 2 July. Spec 4 - UA from 1830 duty section muster, 12 July. Spec 5 - UA from 1830 duty section muster, 15 July. Spec 6 - UA from 0730 duty section muster, 20 July. Spec 7 - UA from 1830 duty section muster, 20 July. Violation of UCMJ, Article 92 (3 specs): Spec 1 - Failure to obey order of DC3. Spec 2 Failure to obey order of CM1. Spec 3 - Failure to obey order of CMC. Violation of UCMJ, Article 112a (2 specs): Use and possession of marijuana on 20 July 1997.
         Award: Forfeiture of $450 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
970828:  DAAR noted the applicant tested positive for amphetamines, per NAVDRUGLAB report of 20 August 97, and was found not to be drug dependant and recommended separation from the Navy not via a
VA hospital.

 970904:  Summary Court-Martial
Charge I: Viol UCMJ, Article 112a: Wrongful use of methamphetamine on 7 July 1997.
Charge II: Viol UCMJ, Article 134: Obstructing justice on 27 August 1997.
Sentence: 30 days confinement, forfeiture of $400 pay per month for one month.

970918:  NAVDRUGLAB Great Lakes reported the applicant's urine received on 12 August 1997 tested positive for methamphetamines.

970929:  Applicant declined evaluation or forfeited any right to any type of drug related treatment.
971002:  Summary Court-Marital
 Charge I: Viol UCMJ, Article 112a: Wrongful use of methamphetamine on 2 September 1997.
Charge II: Viol UCMJ, Article 134: Breaking restriction on 2 September 1997.
Sentence: 30 days confinement, forfeiture of $200 pay per month for one month.

 971013:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by the applicant’s NJP on 24 July 1997 and Summary courts-martial on 4 September 1997 and 2 October 1997.
971013:          Applicant advised of his rights and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
971030:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

971106:  Commander, Naval Air Warfare Center Weapons Division, China Lake directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 971113 under other than honorable conditions for misconduct due to drug abuse (use) (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 response to applicant’s issue 1, the Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members. Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country. It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges. The applicant's service is accurately characterized as having been performed under other than honorable conditions. Relief is not warranted.

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.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C, Change 16, effective 01 Jul 97 until [current]), Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT DRUG ABUSE

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

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