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NAVY | DRB | 1999_Navy | ND99-00722
Original file (ND99-00722.rtf) Auto-classification: Denied


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

ex-ADAA, USN
Docket No. ND99-00722

Applicant’s Request
The application for discharge review, received 990429, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000214. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because it was based on one isolated incident in forty -six (46) months of active duty service. I was discharged twenty-nine (29) days prior to the end of a forty-eight (48) month active duty enlistment.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Arrest record from Franklin County Sheriff's Office
College Transcript
Letter of achievement from college, ie. Dean's List
Letter of appreciation from Director of Operations
Letters of appreciation from General Manager (3)
Letter of appreciation from Vice President of Southwest Region
Letter of notice, i.e Quality Associate of the Month
Offer and acceptance letter for lateral transfer within the company from General Manager
Performance appraisals (3)
Certificate for Quest for Excellence Education
Certificate of Achievement, i.e. Train the Trainer
Certificate for Power Industrial Lift Trucks
Certificate of Accomplishment, i.e. QS-9000 Internal Auditor Training

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     890413 - 890529  COG

 Period of Service Under Review :
Date of Enlistment: 890530               Date of Discharge: 930505

 Length of Service (years, months, days):

         Active: 03 11 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 57

 Highest Rate: ADAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.56 (5)    Behavior: 3.32 (5)                OTA: 3.48

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(2 ND ), BATTLE"E"RIBBON, AFEM, NDSM, SASM, JMUA

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 :

900130:  NJP for violation of UCMJ, Article 113: Sleeping, drunk on watch.
         Award: Oral reprimand, forfeiture of $200 per month for 1 months, restriction for 30 days. No indication of appeal in the record.

901019:  NJP for violation of UCMJ, Article 97: Fail to obey a lawful order.
         Award: Oral reprimand, forfeiture of $100 per month for 1 months, restriction for 30 days. No indication of appeal in the record.
930312:  Civil conviction at San Diego Federal Court for civil code 11377(A) possession of a controlled substance and 11550(A) prohibited using, or being under the influence of , controlled substance; manufacture, distribution, or possession. Charges are pending on the above mentioned codes. If member completes a civil drug course all civil charges will be dropped.

930331:  NAVDRUGLAB OAKLAND CA urinalysis report indicates applicant tested positive for methamphetamines and amphetamines.

930405:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (methamphetamines and amphetamines) a scheduled II controlled substance.
Award: Oral reprimand, forfeiture of $456 per month for 2 month, reduction to E-2. No indication of appeal in the record.
930405:  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 in you current enlistment and pattern of misconduct by reason of all punishments received under the UCMJ during your current enlistment.
930405:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
930407:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and pattern of misconduct.

930430:  DAAR indicates applicant tested positive for amphetamines, found not dependent.

930430:  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 930505 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 applicant 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. In addition, the applicant went to CO’s NJP on three separate occasions. The fact that he “was discharged 29 days prior” to the expiration of his enlistment is irrelevant. The Board will not grant relief on the basis of this issue.

 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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