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NAVY | DRB | 1999_Navy | ND99-00594
Original file (ND99-00594.rtf) Auto-classification: Denied


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

ex-ADAA, USN
Docket No. ND99-00594

Applicant’s Request
The application for discharge review, received 990326, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to reasons established by the military departments. 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 200110. 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 and the reason for 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.       My discharge was inequitable because it was based on one isolated incident in thirteen months of service with no other pattern or history of misconduct.
2.       Under current standards and other commands, I would of not received this type of discharge.
3.       My discharge was inequitable because it improperly portrays my overall service record and my character and is misleading to civilian employers.
4.       I had no incidents of this nature before my enlistment and after my separation.
5.       I will be applying to medical school in the year 2000 and my discharge will have an unfair impact on the representation of my character.
6.       The narrative given on my separation does not agree with DOD Directive #1010.1 paragraph 3.4.1, 3.4.1.1.4, and 3.4.1.3.
7.       My discharge does not meet the criteria specified in DOD Directive #1332.14 paragraph E3.A2.1.3.2.1.3.
8.       My discharge is inequitable because it does not meet the criteria specified in DOD Directive #1332.14 paragraph E2.A2.1.3.2.2.3.1.2.
9.       My discharge unfairly labels me as a Drug Abuser - a one time incident due to youth and immaturity does not constitute such unfair portrayal.
10.      My character of discharge is not consistent with my overall service record.
11.      There was no reasonable effort made to cancel or retain my service.
12.      My discharge was inequitable because the sole evidence was based on a command directed urinalysis with no other history of drug abuse or misconduct DOD Directive #1010.1 paragraph 3.4.1.3.
13.      My reason for discharge does not accurately reflect the reason stated in DOD Directive #1332.14 paragraph E3.A1.1.11.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant
Copy of Federal Aviation Administration Medical Certificate
Copy of Federal Aviation Administration Flight Instructor Certificate
Copy of Federal Aviation Administration Pilot Rating and Limitation Certificate
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 840925               Date of Discharge: 851031

 Length of Service (years, months, days):

         Active: 01 01 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 38

 Highest Rate: ADAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (1)    Behavior: 3.40 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 10

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 :

840927:  Ordered to active duty for 36 months under the Active Mariner program.

 851023:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty from 0700, 851001, to 0700, 851011, violation of UCMJ Article 112A: Wrongfully use marijuana a schedule I controlled substance.
         Award: Forfeiture of $347 per month for 2 months, restriction for 45 days, reduction to E-2. No indication of appeal in the record.

851024:  Retention Warning: Advised of deficiency (Misconduct as evidenced by violation of Article 86, 112a UCMJ: UA from appointed place of duty from 0700, 851001 until 0800, 851011 and wrongfully use marijuana, a schedule I controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

851024:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
851024:          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.

851024:  DAAR indicates applicant consented to voluntary urinalysis, tested positive for Port-A-Kit, did not deny using marijuana, dependency not determined, not amenable, separate not via VA Hospital.

851024:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

851028:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
851029:  Applicant declined in-patient treatment at VA Hospital prior to discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 851031 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 and reason for discharge was proper and equitable (C and D).

In the applicant’s issues 1, 4, 9 the Board found 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 the applicant’s issues 2, 3, 5,10 the normal characterization for misconduct-drug abuse is other than honorable. In addition to the drug abuse, the applicant was UA for 10 days. The characterization of other than honorable takes into account an individual’s entire service record. The applicant had 2 very serious offenses which was why he was discharged.

The applicant states in issue 11 that “t here was no reasonable effort made to cancel or retain my service.” A Commanding Officer has the authority to retain a member in the service or discharge him. The applicant had been UA for 10 days, consented to a urinalysis for which he was positive for marijuana useage and admitted to using drugs regularly for the past year and a half. In addition, the applicant was obligated to an 8 year contract, which a commanding officer could not just cancel.

The Board finds issues 6, 7 , 8, 12 and 13 are non-decisional issues.

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 the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided ample documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/84, effective
17 Sep 84 until 15 Dec 85, 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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