Search Decisions

Decision Text

NAVY | DRB | 1999_Navy | ND99-00865
Original file (ND99-00865.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND99-00865

Applicant’s Request
The application for discharge review, received 990610, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed a private counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417. 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 (verbatim)

 1. Applicant's discharge was improper.

2. Adequate rehabilitative efforts were not made.

3. The Commanding Officer had no basis to conclude rehabilitation unlikely.

4. Applicant's retention in the Navy was prejudiced by reprisal & coercion.

5. Applicant's legal representation was inadequate and negligent.

6. The severity and lasting impact of applicant's OTH discharge is not equitable or just.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Legal brief containing statement of facts, statement of material contentions, and arguments signed by applicant's representative
Summary of application
Copy of DD Form 214
Copy of order for change of name dated June 30, 1989
Sixty-two pages from applicant's service record
Letter to Commanding Officer, USS BARBEY from applicant's parents
Letter to applicant's parents from Member of Congress dated June 21, 1984 with enclosed response
Letter from applicant, undated
Letter from applicant's parents
Letter from applicant's brother dated February 10, 1999
Character/job reference from President, RLH Engineering, Inc dated March 1, 1999
Letter of reference from BM1
Letter of reference from BM3
Letter of reference from BM2

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: 810611               Date of Discharge: 840629

 Length of Service (years, months, days):

         Active: 02 11 27
         Inactive: 00 00 21

 Age at Entry: 23                          Years Contracted: 8

 Education Level: 10 GED                    AFQT: 34

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.05 (2)    Behavior: 3.40 (2)       OTA: 3.45

 Military Decorations: None

 Unit/Campaign/Service Awards: SSR, Letter of Commendation

Days of Unauthorized Absence: 4

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 :

810703:  Applicant ordered to active duty for 36 months in the Active Marine Program.

830214:  Applicant to unauthorized absence, 0600, 14Feb83.

830218:  Applicant from unauthorized absence 1830, 18Feb83 (4 days/surrendered).

831216:  Substance abuse report: Applicant unavailable for further information. Evaluation pending. Urinalysis October 1983. Commanding officer recommended retention. Comments: SNM's performance has declined in recent months; he has, however, potential for further naval service. After evaluation by medical officer he will be screened for NDSAP. No prior NJP. No civil arrests. Additional information extracted from message 092045Z Jan84: Applicant does not admit to drug usage. He claims to have injested a "doctored drink". SAC determined applicant is not dependent and recommends Level I treatment.
840103:  NJP for violation of UCMJ, Article 134: Use of amphetemine/ methamphetemine/cocaine on16Dec83.
         Award: Forfeiture of $50 per month for 2 months, restriction and extra duty for 30 days, reduction to SR. No indication of appeal in the record.
840105:  Retention Warning: Advised of deficiency (Repeated military infractions, performance not considered satisfactory due to your continued involvement of a discreditable nature with military authorities and drug abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

840326:  NAVHOSP, San Diego, CA reported urine sample received 16Mar84 tested positive for cocaine.
840326:  CAAC consult: Re-evaluation of ETOH and drug consumption. Already been seen by NASAP and CAAC. It was recommended that applicant be followed up by VA hosp. Since this applicant is having a very short time of A/D I do not think that ARS would be beneficial at this time, nor di______ __. One wonders if this applicant' is a good candidate for NDRC or ARS since he has not made any efforts to control his EOTH and drug consumption. Strongly recommend admin separation and applicant should be locally counseled by command's SAC or drug/ETOH advisor/counselor.

840405:  Substance Abuse Report: Cocaine abuse, less than monthly Feb84-Mar84, ashore off duty. Urinalysis March 84 (positive urinalysis while on 4 by 4 urinalysis program. CAAC found applicant dependent and recommends separate via VA hospital. Commanding officer recommends separation.
840405:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by one drug related nonjudicial punishment and one positive urinalysis under the drug surveillance program.
840409:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
840515:  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.
840607:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

840616:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

840625:  Applicant no longer desires VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 840629 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 response to the applicant’s issue 1 that the “applicant’s discharge was improper”, the Board found that the discharge was proper. The applicant tested positive for drugs on two separate occasions. He was given all his proper rights and due process. A Commanding Officer may make the determination to begin processing for drug abuse (use) after only one positive urinalysis.

In the applicant’s issues 2 and 3, the Board found that the applicant did have the opportunity to have rehabilitative VA treatment, but declined it.

In the applicant’s issue 4, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

In the applicant’s issue 5 that the “ legal representation was inadequate and negligent” this is a non-decisional issue for the Board. The Board is directed to review the propriety and equity of an applicant. The Board found that the discharge was both proper and equitable based on the severity of the charges against the applicant. The Board found that the applicant was given his proper rights, therefore no relief will be granted.

In the applicant’s issue 6, the applicant states that “the severity and lasting impact of applicant's OTH discharge is not equitable or just.” The Board found that the discharge is equitable. The applicant’s service was accurately characterized as having been served under other than honorable conditions. The applicant was positive on a urinalysis test for cocaine on 2 separate occasions. Discharges for misconduct due to drug abuse are normally under other than honorable conditions, as was the case for the applicant. No relief will be granted on the basis of this issue.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 4/84, effective
25 Apr 84 until 16 Sep 84, 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     


Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-00126

    Original file (ND99-00126.rtf) Auto-classification: Denied

    ND99-00126 Applicant’s Request The application for discharge review, received 981028, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. CAAC found applicant not dependent and recommended Level I treatment.

  • NAVY | DRB | 2000_Navy | ND00-00373

    Original file (ND00-00373.rtf) Auto-classification: Denied

    ND00-00373 Applicant’s Request The application for discharge review, received 000128, requested that the characterization of service on the discharge be changed to general/under honorable conditions. No indication of appeal in the record.860924: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive random urinalysis for cocaine and misconduct due to commission of a serious...

  • NAVY | DRB | 2004_Navy | ND04-00370

    Original file (ND04-00370.rtf) Auto-classification: Denied

    Chronological Listing of Significant Service Events : 830919: Applicant to active duty for 36 months in the Active Mariner Program.830920: Applicant briefed on Navy's policy of drug and alcohol abuse.840323: NJP for violation of UCMJ, Article 134: Wrongful use of marijuana on 840207. No indication of appeal in the record.890920: Drug and Alcohol Evaluation: Applicant may be dependent on drugs.890927: Applicant notified of intended recommendation for discharge under other than honorable...

  • NAVY | DRB | 1999_Navy | ND99-00712

    Original file (ND99-00712.rtf) Auto-classification: Denied

    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...

  • NAVY | DRB | 2002_Navy | ND02-00262

    Original file (ND02-00262.rtf) Auto-classification: Denied

    860815: CAAC evaluation: Applicant does not appear psychologically dependent on cocaine but would benefit from a Level II counseling program due to his alcohol abuse.860828: NJP for violation of UCMJ, Article 112A: Wrongfully use cocaine on 860722. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19970417 under other than honorable conditions for misconduct due to drug abuse (use) (A). Secretary of the Navy Instruction 5420.174C of...

  • NAVY | DRB | 1999_Navy | ND99-00866

    Original file (ND99-00866.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION NJP Results: 45 days restriction, 45 days extra duty, forf $300.00 for 2 months, reduction in rate, process for separation in accordance with OPNAVINST 5350.4.850321: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.850321: Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all...

  • NAVY | DRB | 2000_Navy | ND00-00556

    Original file (ND00-00556.rtf) Auto-classification: Denied

    I (applicant) was released from military service with an other than honorable due to drug test. No indication of appeal in the record.880519: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your wrongful use of cocaine.880519: Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.880523: Commanding...

  • NAVY | DRB | 2001_Navy | ND01-00062

    Original file (ND01-00062.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT ex-MMFA, USN Docket No. No indication of appeal in the record.850917: Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by Commanding Officer NJP of 16 September 1985 and NAVDRUGLAB Norfolk, VA message 060949Z Sep 85.850917: Applicant advised of his rights and having elected not to consult with...

  • NAVY | DRB | 2003_Navy | ND03-00196

    Original file (ND03-00196.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 1 and 4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19791031 - 19800313 COG Active: USN 19800314 - 19840311 HON USN 19840312 – 19891130 HON Period of Service Under Review :Date of Enlistment: 19891201 Date of Discharge: 19950511 Length of Service (years,...

  • NAVY | DRB | 2000_Navy | ND00-00076

    Original file (ND00-00076.rtf) Auto-classification: Denied

    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 issue 1, the applicant states that his “discharge was inequitable because it was based on one NJP incident in 6 years of service with no other adverse action”. At this time, the applicant has not provided any documentation of good character and conduct. Navy Military Personnel Manual, (NAVPERS 15560A), effective...