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NAVY | DRB | 1999_Navy | ND99-00496
Original file (ND99-00496.rtf) Auto-classification: Denied


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

ex-DCFN, USN
Docket No. ND99-00496

Applicant’s Request
The application for discharge review, received 990224, 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 991213. 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

 Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of DD Form 2366 Veterans Educational Assistance Act of 1984 (GI BILL)
Copy of high school diploma dated 8 June 1984
Statement from applicant dated December 28, 1998 (2 copies)
Police record check dated December 7, 1998 (2 copies)
Character reference from pastor of Fair Oaks United Methodist Church dated December 30, 1998 (2 copies)
Character reference from applicant's parents dated January 3, 1999 (2 copies)
Character reference dated January 2, 1999 (2 copies)
Character reference dated January 2, 1999 (2 copies)
Character reference dated December 21, 1998 (2 copies)
Character reference dated December 29, 1998 (2 copies)
Character reference dated January 8, 1999 (2 copies)
Character reference dated January 11, 1999 (2 copies)
Character reference dated January 4, 1999 (2 copies)
Character reference dated December 21, 1998 (2 copies)
Character reference dated December 31, 1998 (2 copies)
Character reference dated January 22, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        851126 - 890929  HON
         Inactive: USNR (DEP)     851122 - 851125  COG

 Period of Service Under Review :
Date of Enlistment: 890930               Date of Discharge: 930326

 Length of Service (years, months, days):

         Active: 03 05 27
         Inactive: None

 Age at Entry: 23                          Years Contracted: 5

 Education Level: 12 1/2           AFQT: 88

 Highest Rate: DC1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.74 (6)    Behavior: 3.51 (6)                OTA: 3.71

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, AFEM, SSDR, NDSM, JMU, GCM

 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 :

920721:  NJP for violation of UCMJ, Article 86: Absent from unit.
         Award: Forfeiture of $50 per month for 2 months, restriction and extra duty for 20 days, oral reprimand. Restriction and extra duty suspended for 6 months. No indication of appeal in the record.
921016:  Retention Warning: Advised of deficiency (Misconduct and substandard performance due to an alcohol related incident resulting in a civil conviction for DUI.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921123:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 921116, tested positive for methamphetamine.

921230:  Applicant completed Level III treatment.

930107:  Vacated suspended restriction and extra duty for 20 days awarded at CO's NJP of 9Jul92 due to continued misconduct.
930107:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 11 November 1992.
Award: Forfeiture of $600 per month for 2 months, restriction and extra duty for 45 days, reduction to DC2. No indication of appeal in the record.
930208:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
930209:  Medical evaluation for drug abuse found the applicant to be a alcohol/drug dependent
930210:          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.
930210:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930316:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930326:  Applicant declined VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930326 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).

 To permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.

The applicant submitted a written statement to the Board concerning his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). 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. 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's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He 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. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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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