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NAVY | DRB | 1999_Navy | ND99-00081
Original file (ND99-00081.rtf) Auto-classification: Denied


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

ex-AMS2, USN
Docket No. ND99-00081

Applicant’s Request
The application for discharge review, received 981020 requested that the characterization of service on the discharge be changed to under Honorable conditions (General). 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, 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 discharge was inequitable because it was based on a single drug screen and considered, no rehabilitation. In consideration of excellent performance marks and over eight years active duty service I ask the board to review and consider upgrading my discharge to a general under honorable conditions.
 After receiving a honorable discharge for my first inlistment of 4 years, I re-enlisted for an additional 4 years and extended for an aroxamate 2ys. These were valuable years of my life and also a learning experience. Mistakes were made on my part, but overall I gave the Navy great performance on my part. Since my discharge, I have gotten older and wiser and realize my mistakes. I hope you will consider the successful years of my military time and grant me the upgrade I’m asking for.
My present discharge (other than honorable) affects some employment opportunities in a negitive manner. I request an upgrade so that I may accell in my present career’s and be an asset to my community.”
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                        780208 - 820203  HON
         Inactive: USNR (DEP)     780206 - 780207  COG

 Period of Service Under Review :
Date of Enlistment: 820204               Date of Discharge: 870204

 Length of Service (years, months, days):

         Active: 05 00 01
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (27 months extension)

 Education Level: 11                        AFQT: 69

 Highest Rate: AMS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.96 (5)    Behavior: 3.24 (5)                OTA: 2.06

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, Battle “E”, SSDR (2)

 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 :

830117:  Retention Warning: Advised of deficiency (possession of a controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

830201:  NJP for violation of UCMJ, Article 134: General Article; Wrongful possession of marijuana.
         Award: Forfeiture of $400.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-4. No indication of appeal in the record.

830201:  Retention Warning: Advised of deficiency (Wrongfully possess marijuana, a controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

830207:         SAR noted applicant’s possession of marijuana, and medical officer’s dependency evaluation that the applicant was not drug dependent.
830617:  Counseling: Advised of deficiency (Possession of marijuana at previous command), notified of corrective actions and assistance available, and a warning that further discrepancies or problems while onboard the command may result in administrative separation under other than honorable conditions.
870121:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana/THC (wrongfully and knowingly used an unknown quantity of marijuana/THC, a schedule I substance).
Award: Forfeiture of $576.30 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
870122:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use).
870122:          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.
870126:  SAR noted applicant’s possession and abuse of marijuana, and medical officer’s dependency evaluation that the applicant was not drug dependent.
870127:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use). Commanding officer’s comments (verbatim): Although AMS3 has been a good worker. He has demonstrated a total disregard for the Navy’s drug policy. SNM was awarded NJP on 830201 while attached to VA-174 for wrongful possession of marijuana including a pg. 13 warning entered in his record for possession of a controlled substance. AMS3 (applicant) admitted use of THC during a leave period prior to urinalysis and stated that he would use it again. I most strongly recommend discharge under Other Than Honorable conditions.

870201:  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 870204 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 the applicant’s issues concerning a single drug screen and the effects of his discharge on employment opportunities, the Board found these issues to be without merit. 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. Relief denied

The NDRB is under no obligation to change the applicant’s discharge characterization to give him the opportunity to obtain better employment. Relief denied.

Although not raised as an issue, the following information is provided for the applicant’s edification. In addition to the service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (F, Part IV). While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency. Those contributions that would be looked upon favorably include educational pursuits, employment performance 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 service under review.

The 15 year window, during which time applicants may appeal their discharge, was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions. The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received within 15 years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective
15 Dec 86 until 14 Jun 87, 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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