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NAVY | DRB | 1999_Navy | ND99-00701
Original file (ND99-00701.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND99-00701

Applicant’s Request
The application for discharge review, received 990428, 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 000207. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 12d, Total Prior Active Service should read: “03 10 12” vice “00 00 00”, Block 12e, Total Prior Inactive Service should read: "00 11 23" vice "00 00 00". The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I have realize the mistake that I made and I am very sorry but I feel I deserve a second chance I have been in recovery for 12-months I did 46 days in hospital I speak very often at AA & NA meetings trying to encourage young people to do the right thing not to make the same mistake I did I am trying to live a good life and try to encourage every young man today to do the right thing.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of certificate of achievement from Meadhave Addictive Disease Program dated April 29, 1998
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        870702 - 910514  HON
         Inactive: USNR (DEP)     860708 - 870701  COG

 Period of Service Under Review :
Date of Enlistment: 910515               Date of Discharge: 921125

 Length of Service (years, months, days):

         Active: 01 06 11
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.47 (3)    Behavior: 3.33 (3)                OTA: 3.47

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with Bronze Star, SSDR

 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 :

881230:  Applicant admitted to LHA-3 ward due to ETOH intoxication. Applicant admits to alcohol problem and desires help through counseling. Will refer to DAPA on 3Jan89 for higher level counseling.
890116:  Substance abuse interview: Recommend Level II. Strong alcohol history. Plan. Anabuse 250mg. Draw baseline LFT's. Refer to CAAC for eval.
920804:  NAVDRUGLAB, San Diego, reported urine sample received 920727, tested positive for cocaine.
920806:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine on 25Jul92.
         Award: Forfeiture of $522 per month for 2 months, restriction for 45 days, reduction to BMSN. No indication of appeal in the record.
920806:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all punishments under the UCMJ in your current enlistment.
920806:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. [Date estimated.]
920807:  Retention Warning: Advised of deficiency (Wrongful use of a controlled substance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920826:  Counseling for alcohol/drug use: A/P: Alcohol use/abuse with psychological dependence. Applicant is highly motivated and strongly recommended for a rehab alcohol program & therefore referral should be made.

 921023:  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.

921030:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): Concur with board's findings. Counsel for the respondent intends to submit a letter of deficiencies concerning counsel's exhibit (N). Counsel's argument is that the Page 13 entry states that the respondent was being retained in the naval service. This page 13 was filed by the ship's office without the knowledge of the Legal Officer or myself. It has always been this command's policy, in accordance with the CNO's policy concerning drug abuse, to separate any servicemember who tests positive for drugs on a random urinalysis. The ship's office has been counseled on Page 13 requirements and future discrepancies such as this are not expected. It has always been my personal intention to separate BMSN (applicant) for drug abuse, and this was made explicitly clear at his NJP for said offense. This command has expended significant time and effort on this case and an Other Than Honorable Discharge is most certainly warranted.

921113:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 921125 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 issue 1, the Board does not accept alcohol abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions. They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.

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 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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