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NAVY | DRB | 1999_Navy | ND99-00553
Original file (ND99-00553.rtf) Auto-classification: Denied


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

ex-EW3, USN
Docket No. ND99-00553

Applicant’s Request
The application for discharge review, received 990312, requested that the characterization of service on the discharge be changed to Honorable or General (under Honorable conditions). The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991221. 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 (Possession), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because, true I did have a drug problem, at the time. If I had a alcohol drinking problem, the Navy would have gotten me some kind of a program. Due to the nature of my problem I wasn't. Since my discharge, I have been rehabilitated and took control of my life once again. I returned to school, joined a church and do volunteer work. Please consider my request. Thank you very much for your consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant's Pastor dated Mar 5, 1999
Letter from Applicant's Employment Assistance Program (Chrysalis) dated Mar 5, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     800603 - 800901  COG

 Period of Service Under Review :
Date of Enlistment: 800902               Date of Discharge: 860425

 Length of Service (years, months, days):

         Active: 05 07 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 62

 Highest Rate: EW2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.67 (6)    Behavior: 3.5 (8)                 OTA: 3.6

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, 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 (Possession), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

820712:  NJP for violation of UCMJ, Article 92 (2 Spec): Spec 1 - possession of a controlled substance, to wit: marijuana, on or about 0735, 09JUL82; Spec 2 - possession of dangerous drug paraphernalia, to wit: one brass pipe, on or about 0735, 09JUL82, onboard USS MOUNT HOOD.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3. No indication of appeal in the record.

840901:  Extension of enlistment for 24 months for training under the Advanced Electronic Field.

851213:  NJP for violation of UCMJ, Article 134: attempting to submit false urine sample [Extracted from CO, USS CALLAGHAN msg 170130Z APR 86.]
         Award: Forfeiture of $250 per month for 1 month. No indication of appeal in the record.

860314:  NJP for violation of UCMJ, Article 86: unauthorized absence form appointed place of duty (5 hours); violation of UCMJ, Article 92: violation of a lawful general order (unauthorized use of after brow).
         Award: Forfeiture of $200 per month for 1 month, extra duty for 45 days, reduction in rate to E-4. No indication of appeal in the record.
        
860326:  NJP for violation of UCMJ, Article 112a: wrongful use of controlled substance.
         Award: Forfeiture of $442 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
860404:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse within the current enlistment.

860407:  CO's NJP of 86MAR26 disallowed this date. Member found not guilty of all charges by new evidence. All rights and privileges restored to member.

860417:  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 make statement and the right to obtain copies of the documents used to support the basis for the separation.

8604XX:  Applicant's Statement: "I do not want to be separated this way. In the past 6 years, I've performed very honorably at all commands I've been attached. I was an outstanding student at every school I've been to. At my first sea command I continued to perform professionally. I was a contribution in receiving departmental awards. I repeated this professionalism when assigned to CALLAGHAN. I contributed to the cause in wining all 9 departmental and Battle "E" awards. I am proud to have served in the U.S. Navy and all of the commands I've been attached. Some spots have been bumpy, some very enjoyable. I have a short time left - My EAOS is in Sep 86. I have plenty of leave to separate by July 8, 1986. I really would appreciate this change to save the navy man hours and money. If you determine that I should be discharged, please consider by service and grant me an Honorable separation. I am proud of the U.S. Navy."

860417:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse. Commanding officer’s comments (verbatim): "Counsel requirements have been met and documented in SNM's service record. EW3 (Applicant) has no potential for further service. his demonstrated unreliability and efforts to "beat the system" adversely affects the morale of his shipmates and good order and discipline within this command. He has been counseled repeatedly by all echelons of the chain of command to set the example as a responsible petty officer, and conform his behavior to Navy standards. SNM is not supportive of navy regulations evidenced by his latest NJP. His continued disregard for regulations suggests future conduct problems. EW3 (Applicant) attempted to submit another's urine sample for his own in Dec 85. On 9 Mar 86, SNM left place of duty by sneaking off after-brow in civilian clothes while in a duty status after taps. EW3 (Applicant) was again counseled concerning his behavior. Two command directed urinalyses revealed the unlawful use of cocaine on or about 30 Jan 86 and 28 Feb 86. As a result of his irresponsibility and unreliable behavior, EW3 (Applicant)'s security clearance has been removed and he is therefore unable to handle sensitive intelligence data - as his duties require. Recommend immediate separation from the naval service under Other Than Honorable conditions. EW3 (Applicant) feels as though he is exempt from the navy's "No Drug" Policy. He is untrustworthy, irresponsible, incorrigible, and a detriment to my command's morale. He has zero potential for productive naval service."

860423:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Possession).

 [NOTE: Medical documentation concerning drug dependency or counseling/warnings not in record.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860425 under Other Than Honorable conditions for Misconduct due to Drug abuse (Possession) (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 determined this issue is without merit. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service. The Board reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. This applicant’s discharge was proper and equitable. Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). The applicant has provided some documentation of good character and conduct but not sufficient enough to warrant an upgrade to his discharge. The applicant is encourage to continue his efforts to establish a reputation of good character. He is also reminded that he remains eligible for and is strongly encouraged to schedule a personal appearance hearing. Documentation to support any claims of good character are a must . An application must be received by the NDRB within fifteen years from the date of her discharge or it will be denied. It is advisable to have legal representation at the hearing.


 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective
16 Dec 85 until 05 Oct 86, 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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