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NAVY | DRB | 1999_Navy | ND99-00070
Original file (ND99-00070.rtf) Auto-classification: Denied


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

ex-HT2, USN
Docket No. ND99-00070

Applicant’s Request
The application for discharge review, received 981013 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 a 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. My undesirable/under than honorable conditions was based on a single incident. If not for my rank at time of offense I do not believe the treatment would have been so harsh.

2. In nearly ten years since my discharge I have had no drug or alcohol related incidents, not even a driving violation. I wish not to have to carry this with me for the rest of my life.

3. Some V. A. benefits are valuable to me now and may be in the future. Being denied after this time has been enough punishment for me and those in my family.

 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: USN               790830 - 830714  HON
         Inactive: USNR (DEP)     790714 - 790729  COG

 Period of Service Under Review :
Date of Enlistment: 830715               Date of Discharge: 881007

 Length of Service (years, months, days):

         Active: 05 02 23
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 12                        AFQT: 71

 Highest Rate: HT1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (6)             Behavior: 3.80 (7)                OTA: 3.44

 Military Decorations: None

 Unit/Campaign/Service Awards: HSM, NEM, SSDR, ASM, GCM, AFEM,
 Battle “E”
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 :

881115:  DAAR noted applicant tested positive for amphetamines on a random urinalysis. It was determined that member was not dependent and not eligible for treatment.
880731:  NJP for violation of UCMJ, Article 112a: Did on 08-13 Jun 88, wrongfully use a controlled substance, to wit: methamphetamine/ amphetamine.      
Award: Forfeiture of $587.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-5. No indication of appeal in the record.
880731:  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 your service record.
880818:  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, and the right to respond to the Notice of the Administrative Board Procedure Proposed Action.
880901:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense. Commanding officer’s comments (verbatim): HT2 (applicant) has violated the trust and responsibility of a Petty Officer by his drug abuse. Strongly recommend a discharge under other than honorable conditions.

880907:  CNMPC 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 881007 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to the applicant’s issue 1, the Board found the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

In response to the applicant’s issue 2, 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.

The Board has no obligation to change the applicant’s discharge in order to allow him to obtain VA benefits. Relief is not warranted.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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