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NAVY | DRB | 1999_Navy | ND99-00173
Original file (ND99-00173.rtf) Auto-classification: Denied


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

ex-EMFN, USN
Docket No. ND99-00173

Applicant’s Request
The application for discharge review, received 981117, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision
A personal appearance discharge review hearing was conducted in Washington, D.C. on 000920. 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 four to one 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. (Equity Issue) As the documentary evidence of record supports, this former member opines that his post-service conduct and accomplishments have been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1)
Copy of Associate Degree in Applied Science dated May 20,1986
Copy of Phi Theta Kappa membership
Copy of Who’s Who Among Students in American Junior Colleges
Copy of Tutor certificate and articles
Copy of St. Frances Cabrini Parish membership
Copy of National Safety Council driving certificates
Copy of EMT certifications and blood donations.
Copy of Houston Lighting & Power Company employee pay record
Copy of W-2’s from Wal-Mart
Copy of acceptance letter to the University of Texas at Tyler
Copy of Academic Transcript dated March 25, 1994
Copy of Bachelor of Science in Technology dated May 16, 1992
Copy of CDL driver's license
Copy of Federal Drug Testing Custody and Control Form dated September 22, 1998
Copy of statement of direct deposit from Illinois Power
Copy of voter registrations
Copy of Houston Alumni Organization card
Copy of Electrical Workers Local 51 card
Copy of The Institute of Electrical and Electronics Engineers, Inc membership form
Copy of police record checks dated July 28, 1987 and December 18, 1998
Copy of employee performance review dated February 13, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     800827 - 800909  COG

 Period of Service Under Review :
Date of Enlistment: 800910               Date of Discharge: 831202

 Length of Service (years, months, days):

         Active: 03 02 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.35 (4)    Behavior: 3.05 (3)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

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 :

800827:  Applicant granted civil and marijuana waiver.

 830502:  CAAC evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

830505:  Counseling: Advised of deficiency (continuation of my past performance), notified of corrective actions and assistance available.

830714:  Substance Abuse Report: Marijuana abuse, ashore off duty, urinalysis May 1983. CAAC found applicant not dependent and recommended Level I treatment. Commanding officer recommended retention and refer to NASAP/NDSAP.

830813:  NJP for violation of UCMJ, Article 134: Using a controlled substance resulted in urinalysis test on 83Mar31.
         Award: Forfeiture of $366.60 per month for 2 months, restriction and extra duty for 45 days, reduction to EMFN. No indication of appeal in the record.
831020:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis from random screening of 31 March 1983. [Extracted from CO's message dated 831104.]
831025:  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 submit a statement. [Extracted from CO's message dated 831104.]
831103:  Applicant's statement (verbatim): Dear Sirs: I wish to make a statement concerning my discharge, I've tried hard to stay out of trouble during my naval career, and set a good example for others to follow, except for the fact that I had smoked marijuana but at the time only couple of people knew this. Subordinates as well as senior petty officers have learned from my case that the only way to stay out of trouble totally is not to smoke at all. There had been no cases on board of personnel receiving discharges for positive urinalysis prior to my NJP for myself to learn from.
 I regret now for abusing marijuana to try and help relieve pressures and tension that mount up. I now understand the Navy's attitude about drug related incidences and where I stand because of it. I just hope it is taken into consideration my performance in the Navy and the hard work and long hours I have put in. Thank you. Respectfully (applicant) [Extracted from CO's message dated 831104.]


 831104:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): EMFN (applicant) has abused drugs which cannot be tolerated in the Navy. His attitude toward drug abuse is one of indifference. He has refused to except the fact that drug use while ashore will not be tolerated by the Navy. Because of this, EMFN (applicant) is not suitable for the Navy. Recommend he be discharged from the naval service and that the discharge be characterized as a general discharge because of his good performance and record since reporting for duty.

831111:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

 880602:  NDRB documentary record review Docket Number ND87-02107 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 831202 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).

 The applicant’s representative submitted the following as issue 1: (Equity Issue) As the documentary evidence of record supports, this former member opines that his post-service conduct and accomplishments have been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3. The Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides that an unfavorable 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 been found to have existed during the period of enlistment in question. 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 did provide substantial documentation of his post-service accomplishments. The Board carefully reviewed the applicant’s military record and post-service accomplishments and found, by a vote of four to one, that clemency was not warranted. The Board determined that the applicant’s record of service and his post-service accomplishments, though commendable, were insufficient to mitigate the applicant’s misconduct during his Naval service. Therefore no relief will be granted.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/83, effective
05 Nov 83 until 24 Apr 84, 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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