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NAVY | DRB | 1999_Navy | ND99-00217
Original file (ND99-00217.rtf) Auto-classification: Denied


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

ex-ADAR, USN
Docket No. ND99-00217

Applicant’s Request
The application for discharge review, received 981125, requested that the characterization of service on the discharge be changed to 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 000110. 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.       Please note prior navy record. I had good ratings for the two year period prior to the incident.
2.       I did use illicit drugs on a single occassions and I was found out on a urinalysis.
3.       I am requesting that my discharge be upgraded to General under honorable conditions so that I can receive Dept of Veterans Affairs medical benefits, with my current discharge, I am barred for VA benefits for the use of V.A. medical facilities.

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                        None
         Inactive: USNR (DEP)     861205 - 861208  COG

 Period of Service Under Review :
Date of Enlistment: 861209               Date of Discharge: 880413

 Length of Service (years, months, days):

         Active: 01 04 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rate: ADAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E"RIBBON

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 :

871105:  Medical evaluation found the applicant to be psychologically and probable physical dependency to ETOH with psychological dependency to cocaine and marijuana

871107:  Psychological evaluation indicate applicant admits to suicidal ideation, alcohol dependence continuous, polysubstance (marijuana and cocaine) abuse continuous, recommends follow up with group, PNH -Bldg 1, 3 rd deck recreation room on Wednesday @ 1415 hrs (beginning 18 Nov), attend NA & AA meetings 5x/week - patient agreed to obtain sponsor, daily follow up with command DAPA, return to full duty, allow patient to sleep as duty permits, patient instructed to abstain from drugs and alcohol.

871113:  Substance Abuse Report indicates applicant turned himself into the Squadron Legal Officer on 28 Oct 87, admitting to the recreational use of cocaine and marijuana. He had attended a Drug Rehabilitation Center prior to entering the Navy and did not desire to go through ARC. He was determined drug and alcohol dependent by a medical doctor. He is not amenable to rehabilitation and is being processed for administrative discharge.

880111:  NAVDRUGLAB, Norfolk, VA report indicates applicant testes positive for cocaine and PCP.
880211:  NJP for violation of UCMJ, Article 112a: Wrongful use of some amount of cocaine and PCP on or about 4 Jan 88.
         Award: Forfeiture of $335.70 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
880218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of drug abuse rehabilitation failure and misconduct due to drug abuse.
880222:          Applicant advised of his rights and having elected 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.
880304:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse rehabilitation failure and misconduct due to drug abuse. Commanding officer’s comments (verbatim): ADAR____(applicant’s) case is a graphic example of a young and immature individual who does not possess the self-discipline to say, "no”. His problem is his unwillingness to admit that he is substance dependent and is exacerbated by his refusal to seek rehabilitation. Because of his continued drug use and abuse and his refusal to seek rehabilitation he has my strongest recommendation for an other than honorable discharge.

880316:  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 880413 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 the response to applicant’s issues 1 and 2, 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 applicant’s issue 3, the Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility. There is no requirement or law that grants recharacterization based solely on the issue of obtaining veteran's benefits. This is not an issue for which the Board will grant relief.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

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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