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NAVY | DRB | 1999_Navy | ND99-00712
Original file (ND99-00712.rtf) Auto-classification: Denied


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

ex-MM3, USN
Docket No. ND99-00712

Applicant’s Request
The application for discharge review, received 990430, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of Government. 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 and the reason for the 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. PETITIONER suffered punishment for three (3) NJP offenses. Neither punishment consisted of an Other Than Honorable Discharge. PETITIONER received an Other Than Honorable Discharge by means of an Administrative Discharge Board.

2. Intentions and desires of PETITIONER'S commanding officer (CDR C_ A_ K_, USN) as directed to executive (LCDR G_ A_ D_, USN) offered in good faith was disregarded by PETITIONER'S Administrative Discharge board (LCDR M_ G_ P_, USN; Lt. C_ B_, USN; Lt T_ L_ G_, JAGG, USNR; Lt. B_ L_ S_, USN; QMC (SS) P_ C_ M_, USN) thus subjecting PETITIONER to an undesirable discharge. (Compare Exhibit "A" reference 4 to Exhibit "A" reference 11)

3. Bias

4. Inconclusive evidence/omission of evidence/irregularities in submission of evidence.

5. Ineffective assistance of counsel.

6. PETITIONER served honorably


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of previous discharge DD Form 214
Copy of current discharge DD Form 214
Page 2 of NRMC JAX FL dated May 29, 1980
Exhibit which includes the issues, remarks, summary and conclusion

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        790119 - 820324  HON
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 820325               Date of Discharge: 850117

 Length of Service (years, months, days):

         Active: 01 10 23
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 10                        AFQT: 55

 Highest Rate: MM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.45 (4)    Behavior: 2.60 (5)                OTA: 3.54

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR with two Bronze Stars, Letter of Appreciation

 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 :

820221:  Applicant received drug and alcohol rehabilitation program regimen.

 820509:  NJP for violation of UCMJ, Article 134: Conduct of a nature to bring discredit upon the Armed Forces.
         Award: Forfeiture of $50 per month for 1 month. No indication of appeal in the record.
831228:  NJP for violation of UCMJ, Article 116: Breech of the peace, violation of UCMJ Article 134: Drunk and disorderly.
         Award: Forfeiture of $200 per month for 1 month, detention of $300.00 pay per month for 2 months, detained for 6 months. No indication of appeal in the record.
831229:  Retention Warning: Advised of deficiency (Cause a breech of peace and drunk and disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

840221:  Substance Abuse Report: Alcohol abuse, observations, December 1983, less than monthly, ashore off duty. SAC determined applicant is not dependent and recommended Level II treatment. Separate SAC/NASAP/NDSAP/CAAC evaluation found applicant not dependent and recommended Level II (CAAC Program). Commanding officer referred to CAAC, Level II. Comments: 8 May 92, Violation of 134 (conduct of a nature to bring discredit upon the Armed Forces), awarded forfeiture of $50.00 per month for one month, 11 Dec 83, Violation of 116 Breech of peace and drunk and disorderly, awarded forfeiture of $200.00 per month for one month and detention of $300.00 dollars per month for two months detained for six months. Additional comments: Applicant engaged in fist fight while drunk.
840523:  Applicant received letter of substandard service from CNP.

840907:  Applicant received letter of substandard service from CNP.

 840919:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cannabinoids.
         Award: Forfeiture of $400 per month for 2 months, restriction for 45 days, reduction to MM3, oral admonition. No indication of appeal in the record.
840927:  Substance Abuse Report: Marijuana abuse, less than monthly, August 1983, ashore off duty. Inspection urinalysis August 1984. CAAC determined applicant is not dependent and recommended Level I treatment. Commanding officer recommended separation.
841012:  Applicant disqualified from submarine duty.

 841019:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.
841023:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
841114:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

841221:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to drug abuse (use).

850105:  CNMPC 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 850117 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 the reason for discharge was proper and equitable (C and D).

The applicant raised the fact that none of his three NJP’s resulted in other than honorable discharges. The Board found that the separation process was in strict compliance with the Naval Military Personnel manual. A Commanding Officer does not have the authority to separate an individual from the service at non-judicial punishment. The proper way to administratively separate an individual is by recommendation to the Chief of Naval Personnel and service members can elect to have an Administrative Discharge Board. Therefore, no relief will be granted based on this issue.

In response to the applicant’s issue 2, a Commanding Officer cannot make his “intentions and desires” known to an Administrative Discharge Board. This would be considered undue influence. This Board gives its recommendation to the CO. The CO then has the option of agreeing or not with the recommendation from the board and then makes his own recommendation to Commander, Naval Military Personnel Command for the final decision and separation authority. The CO’s recommendation was for the applicant to be discharged under other than honorable conditions for misconduct due to drug use and pattern of misconduct. The Board found this separation to be proper and equitable and will not grant relief based on this issue.

The applicant purports in issue 3 that there was bias against him because he was “not willing to commit to the Navy as a profession” and based on his positive urinalysis. The NDRB does not make a determination concerning an Administrative Discharge Board. The applicant’s counsel had the option of submitting a letter of deficiency specifically citing any


In addition, the applicant had 3 non-judicial punishments within a year and a half which established a pattern of misconduct, he received 2 letter s of substandard performance from the Chief of Naval Personnel, was given a retention warning and then had a positive urinalysis for cannabinoids. The applicant was dual processed for pattern of misconduct and drug abuse. Under these circumstances, it would be normal to give an other than honorable discharge for any one of these

In response to the applicant’s issue 4 and 5 that there was inconclusive evidence, omission of evidence and irregularities and therefore ineffective counsel, the Board found that the applicant had a positive urinalysis. This is the only requirement to discharge someone for misconduct due to drug abuse. There is no further requirement to have an additional urinalysis conducted. There was also 3 NJPs which clearly established a pattern of misconduct. No relief will be granted on the basis of this issue.

In response to the applicant’s issue that the “petitioner served honorably,” the Board strongly disagrees with this statement. The applicant took drugs, which he knew were against Navy regulations. He was also convicted at non-judicial punishment three times in only one and a half years. His service was accurately characterized as having been under other than honorable conditions.

The Board cannot change the reason to “Convenience of government” as the applicant requests because he was not separated for the convenience of the government. The applicant was separated for misconduct due to drug abuse and pattern of misconduct. Any other reason would be inappropriate. No relief will be granted.

 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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