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NAVY | DRB | 1999_Navy | ND99-00096
Original file (ND99-00096.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND99-00096

Applicant’s Request
The application for discharge review, received 981021, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant did not list any person or organization as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991004. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. “Please consider the fact I was not offered drug rehab. I volunteered this. Also the personal problems I was going through at the time were more than I could handle. And my family responsibilities were above my head to handle but I didn’t realize it until I was in trouble. I requested then to stay in the service. I was denied without any consideration of these facts.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of 201 file provided by NPRC- 34 pages
My statement – 17 pages
Certificate of Appreciation
Six letters of reference
One college transcript – Chemeketa College, Salem, OR

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940315 - 940817  COG

 Period of Service Under Review :
Date of Enlistment: 940818               Date of Discharge: 980811

 Length of Service (years, months, days):

         Active: 02 11 24
         Inactive: 00 00 00

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rate: OS-3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, MUC (2), SSDR, AFEM, Navy “E”

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950222:  Convicted in General District Court, Virginia Beach, VA of petition larceny.
         Fined $250, plus court costs and 10 days in jail (suspended.)
960927:  NJP for violation of UCMJ, Article 92: Did on or about 960915 violate a lawful general regulation in that he wrongfully wore two nipple rings.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days, reduction to OSSA. Reduction suspended for 6 months. No indication of appeal in the record.
960927:  Retention Warning: Advised of deficiency (failed to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970620:          NAVDRUGLAB San Diego, CA sent message to USS CARL VINSON (CVN-70). Urinalysis testing of Batch 8154/Spec No. 01, SSN 540-27-0578 tested positive for Amphetamine, Methamphetamine and THC.
970630:  SNM screened by Medical Officer aboard USS CARL VINSON (CVN-70) and was found not be dependent on drugs and does not require hospitalization or detoxification.
970703:  NJP for violation of UCMJ, Article 112a (2 specs): (1) Wrongful use of amphetamine and methamphetamine on or between 970522 and 970525. (2) Wrongful use of marijuana on or between 970522 and 970525. Violation of UCMJ Article 92: Failure to obey a lawful order on or about 970525.
         Award: Forfeiture of $525 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN. No indication of appeal in the record.
970714:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Commission of a Serious Offense, Misconduct due to Drug abuse (Use), Misconduct due to Civil Conviction and Misconduct due to a Pattern of Misconduct.
970714:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights used to support the basis for the separation

970728:  NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer on or about 970727.
Award: Forfeiture of $150 per month for 1 month. No indication of appeal in the record.

970729:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of Misconduct.

970804:  COMCARGRU Three 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 970811 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, 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 issue 1, the Board found this issue has no merit. The applicant was found not to be drug dependent by competent medical authority and did not require hospitalization or detoxification at the time of his drug offense. In reference to the applicant’s personal problems, there is no documentation that shows his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by his chain of command. Relief denied.

 The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides that a less than Honorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have occurred during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. Outstanding post-service conduct, 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, is considered. The applicant provided several character references, who spoke highly of the applicant, as well as college transcripts. The applicant needs to continue his pursuit to establish a pattern of good character and conduct. Evidence of continuing education, a verifiable employment history, documentation of community service and certification of non-involvement with civil authorities will provide a basis for clemency consideration based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. He remains 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. Naval Military Personnel Manual, (NAVPERS 15560C, Change 16, effective 01 Jul 97 until [current], 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     

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