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NAVY | DRB | 1999_Navy | ND99-00717
Original file (ND99-00717.rtf) Auto-classification: Denied


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

ex-BM3, USN
Docket No. ND99-00717

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 the government reenlistment code to RE-1. The applicant requested a documentary record discharge review. The applicant did listed Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000331. 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 4 to 1 that the character and reason for 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 (verbatim)

1.       The FSM was discharged from active Naval service on August 7, 1997, due to improper use of a controlled substance. The FSM had an exemplary service record until this incident. At the time in question, the FSM was going through a deterioration of his marriage which adversely affected his reasoning abilities.
2.       The FSM does not contest that what he did was improper. Nor does the FSM contend the Navy's decision. However, the FSM has done much to improve his value to society since his discharge from the Navy in 1997. The FSM has since remarried, become an active member at his church, volunteers regularly at various High schools to assist with computer upgrades and hands on introduction to computer for he students, obtained an Associate of Applied Science degree in Computer Technology, been on the Dean's List, currently pursuing an A+ certificate, and daily volunteers 3 hours a day to his local Red Cross.
3.       The FSM has included numerous lay statements to support his contentions. After a thorough review of the evidentiary material, we feel the FSM has actively sought to improve his life, the life of his family, and the lives of other that he assists. Therefore, we feel the FSM has become a credit to society and we ask the Board to find in favor of this petition. The FSM has paid the price for his mistakes, now this discharge is keeping him from obtaining his full potential.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
DAV issues letter
Copy of DD Form 214
Copy of previous DD Form 214
Letter from applicant (2pgs)
Letter of reference from wife (2pgs)
Letter of reference from mother
Copy of Associate in Applied Science degree
Transcript
Copy of Certificate of Completion for Electronic Service Technician
Copy of Dean's List Certificate
Copy of Enlisted Surface Warfare Specialist Certificate
Copy of Evaluation Report & Counseling Record (2pgs)
Notification letter from Trinity Missionary Baptist Church
Letter from Veterans Service Officer
Letter for volunteering service at Farrington High School
Employment Reference Letters (2)
Reference Letters (7C)
Letter of Recommendation
Copies of Character Witness Questionnaires (3)
Copy of Traffic Record Report
Medical Disability decision (4pgs)
Copy of DD Form 214
Volunteer service letters (3)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        850903 - 880317  HON
         Active: USN                        880318 - 930721  HON
Inactive: USNR (DEP)     850614 - 850902  COG
Period of Service Under Review :
Date of Enlistment: 930722               Date of Discharge: 970807

 Length of Service (years, months, days):

         Active: 11 11 05
         Inactive: None

 Age at Entry: 21                          Years Contracted: 5

Education Level: 12                        AFQT: 28

 Highest Rate: BM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.77 (7)    Behavior: 3.80 (7)                OTA: 3.74

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (4 TH ), MUC, NEM, BATTLE"E"AWARD, NDSM, GCA (3 RD ), NAM, Marksman Pistol Shot Medal, NUC, AFSM, Enlisted Surface Warfare Specialist Insignia

 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 :

930722:  Reenlisted at ACU TWO NAB LCRK, VA for 5 years.

 961202:  NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for cocaine.
961230:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine, a controlled substance.
         Award: Oral Reprimand, forfeiture of $678 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
970607:  Retention Warning: Advised of deficiency (Failure to pay just debt.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970203:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Naval Drug Laboratory Jacksonville, Florida, message 021731Z DEC 96.
970203:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970602:  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.
970806:  Commander, Amphibious Group TWO directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
970818:  Commanding Officer, Assault Craft Unit FOUR UIC 47106 recommended 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 970807 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 response to the applicant’s issue 1, the Board found that although the applicant may have had an impressive service record, this was overshadowed by the fact that he used illegal drugs. No relief will be granted based on this issue.

In response to the applicant’s issues 2 and 3, 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 strongly 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), 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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