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NAVY | DRB | 1999_Navy | ND99-00671
Original file (ND99-00671.rtf) Auto-classification: Denied


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

ex-AMSAN, USNR
Docket No. ND99-00671

Applicant’s Request
The application for discharge review, received 990419, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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.

The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “MISCONDUCT” vice “MISCONDUCT - DRUG ABUSE (USE)”. The original DD Form 214 should be corrected or reissued as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I feel the Other Than Honorable discharge I received was unjust due to the fact I had 47 months of service with no issues or adverse actions. I feel I gave the U.S. Navy 4 years of Good Service.

2. I was also told by my command that I could receive in-patient treatment at any V.A. hospital after my discharge. I was told this by CMC I_ and the command DAPS
ASM1 C_. I received the above letter at my home after my discharge. I tried to get inpatient treatment at Camp Perry V.A. Hospital and was turned away by the Director on Nov/93.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Administrative Remarks (Page 13) dated 93NOV30
Enlisted Performance Evaluations (6)
2 Letters of Appreciation from CO, Patrol Squadron 66
Navy/Occupation/Training and Award History record page (2 pages)

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 890829               Date of Discharge: 930831

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: 00 00 03

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 55

 Highest Rate: AMS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.31 (7)    Behavior: 3.37 (7)                OTA: 3.38

 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 :

890901:  Commenced 48 months of active duty under the TAR Enlistment Program.

930806:  NAVDRUGLAB Great Lakes: Received two samples - one on 29 Jul 93 and one on 2 Aug 93. Both positive for cocaine.

930814:  DAAR: Probable cause screening, positive for cocaine, incident occurred on 93JUL24, dependent, determined by physician, recommend separate via VA hospital. Applicant admitted to using cocaine 3-4 times a week for last 5 years, backed-up by positive urinalysis.

930814:  NJP for violation of UCMJ, Article 86 (2 Specs): failure to report to appointed place of duty 93JUL23 and 93JUL26, violation of UCMJ Article 112A: wrongfully use of cocaine 93JUL23.
         Award: Restriction 17 days, reduction to E-3. No indication of appeal in the record.
930814:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by VP-66 Command Directed urinalysis collected on 24 July 1993 which tested positive for cocaine; a Command Directed urinalysis collected by NAS Willow Grove, PA on 28 July 1993 which tested positive for cocaine; a Random Sample urinalysis for Probable Cause collected on 28 July 1993 by NAS Willow Grove, PA which tested positive for cocaine; the member's self-admission to Officer in Charge, VP-66, Willow Grove, PA on 28 July 1993 that he used drugs; and CO's NJP, VP-66 held on 14 Aug 1993 for a Violation of UCMJ Art 112a - wrongful use of cocaine.

930817:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930818:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930822:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "A VP-66 Command Directed Urinalysis was executed on 24 July 1993 following the member's return from a UA status on 23 July 1993. This initial incident was followed by another period of UA on 28 July 1993, followed by member's self-admission of drug abuse (use), and subsequent urinalysis for probable cause. Enclosures (1) and (2) document all subsequent action taken by this command in processing this issue.

         I fully support the CNO policy of "ZERO TOLERANCE" for drug usage. As an operational aviation squadron, our mission places human life at risk everytime an aircraft is launched, even under the most ideal conditions. AMSAN (Applicant)'s squadron assignment was in Workcenter 120 - Airframes which entails work on structural repairs and fabrication, as well as hydraulic systems. Although AMSAN (Applicant), prior to this incident, was a good worker and a review of his service record is favorable; I simply can not afford to have a drug impaired individual increasing the inherent risks of our mission. I do not believe AMSAN (Applicant) is the quality sailor required in today's Navy. His potential for continued service is not warranted due to his Misconduct - Drug Abuse (use). I most strongly endorse the recommendation of the Administrative Board held on AMSAN (Applicant) on 18 August 1993 onboard VP-66, NAS Willow Grove, Pennsylvania."

930825:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930831:  Letter of Deficiency in the Administrative Discharge Board submitted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930831 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).

In the applicant’s first issue, he 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.

 The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. The Board determined the applicant’s discharge was proper and equitable. Relief denied

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 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, 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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