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NAVY | DRB | 1999_Navy | ND99-00641
Original file (ND99-00641.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND99-00641

Applicant’s Request
The application for discharge review, received 990412, requested that the characterization of service on the discharge be changed to Honorable. 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 000201. 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, authority: NAVMILPERSMAN, Article 3630620.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I am writing to change my other than honorable discharge. I was separated administratively on Jan. 31, 1997. I arrived in Okinawa Japan and I went through custom inspections and was brought up on charges for possession of a controlled substance of testosterone, a steroid. I went through a urinalysis and tested negative. I was then assigned to appear in captain's mast and was given a second chance with two months half pay deducted, demoted from E3 to E2, 45 days of restriction and 45 days of extra duty.
About a month later, I received word that under UCMJ I am to automatically be separated administratively. My chances of continuing my naval career and to prove myself were lost and my captain's mast was withdrawn.
In the previous years before my charges, I received excellent evaluations and continued to serve the navy to the best of my abilities. My previous evaluations were at 4.0 and also from a scale of 1 to 5, I scored a 4.33.
At the time I took the vial (of testosterone) it was in the beginning of my naval career. Instead of returning the vial I honestly forgot and left it in a gym bag where it was kept in a zipper pocket. It had been there for approximately one and a half years before it was discovered in Okinawa Japan.
I enjoyed my naval career throughout the four years and went through a challenging training experience as a field corpsman with the marines. So I am asking the Naval Discharge Review Board to reconsider my other than honorable discharge. Attached I have documents pertaining my separation, recommendations from military personnel, and evaluations. Please reply that you have received this letter. Thank you very much for your time and cooperation.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Statement for the Record in case of the Applicant from C_M. K_, HMC(FMF)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930714 - 931214  COG

 Period of Service Under Review :
Date of Enlistment: 931215               Date of Discharge: 970131

 Length of Service (years, months, days):

         Active: 03 01 17
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 54

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 4.0 (1)                 OTA: 4.0 (4.0 evals)
3.25 (4)        2.75 (4)                          3.1 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

940311:  Applicant UA from 0645-0930 (2 hours, 45 minutes). Surrendered on board.

940708:  Retention warning: Advised of deficiency (violation of UCMJ, Article 86, absent from appointed place of duty, from 1800 until 2000 on 26 Jun 94 - resulted in being placed on report for unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
960809:  Report of investigation. Investigation initiated after LCpl b_ D. R_, USMC, reported at 1405, 09AUG96, while conducting a customs search at the Camp Schwab theater, two bottles of suspected steroids were discovered in the applicant’s personal effects.

960809:  Applicant’s personal account of how steroids were in his possession. Applicant admits to steeling two vials of steroids from USNH San Diego. He denies ever using steroids.

960809:  Applicant notified of right to consult with lawyer in regard to a pending NJP for violation of article 112A of the UCMJ. Applicant chose not to exercise that right and acknowledged that acceptance of NJP does not preclude other adverse administrative action.
960814:  NJP for violation of UCMJ, Article 112a: wrongful use, possession, etc., of controlled substances.
         Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
960919:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by all drug incidents during his current enlistment.
961003:  Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board. Applicant objected to the separation.
961021:  An Administrative Discharge Board, based upon a preponderance of the evidence, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under Other Than Honorable conditions.

961205:  CO, 2d Battalion, 7 th Marines, concurred with Board's findings and recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

970221:  Commanding Officer, 2d Battalion, 7 th Marines recommended Administrative separation of applicant under Other Than Honorable conditions, by reason of misconduct due to drug abuse. CO advised BUPERS that the recommendation for Administrative separation package was forwarded via 3d Marine Division.

971223:  CG, 3d Marine Division advised BUPERS that they concurred with the findings and recommendations of the Administrative Discharge Board and directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970131 under Other Than Honorable conditions for misconduct due to Drug abuse (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. The applicant admits to stealing two vials containing steroids, from the USNH San Diego, in a written, personal statement. He was punished for the wrongful use, possession of controlled substance. His performance and evaluation marks prior to this incident are irrelevant. Relief denied.

The following is provided for the applicant’s edification. 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, subsequent to leaving military service. The NDRB 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 to determine if proper procedures were followed. 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 did not provided any documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements . He remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.

 Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT 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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