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NAVY | DRB | 1999_Navy | ND99-00871
Original file (ND99-00871.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND99-00871

Applicant’s Request
The application for discharge review, received 990609, 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 000317. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because it was based on one isolated incident in 8 1/2 months of service and I did complete the rehabilitation program at NARC Miramar during my last month of service voluntarily.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated May 31, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950209 - 950222  COG

 Period of Service Under Review :
Date of Enlistment: 950223               Date of Discharge: 951109

 Length of Service (years, months, days):

         Active: 00 08 17
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 93

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

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 3630600.

 Chronological Listing of Significant Service Events :

950629:  Drug and Alcohol Abuse Report: Hallucinogens (LSD) abuse, 4 to 7 times per week, self-referral June 19, 1995, ashore off duty. CAAC recommended Level III treatment. Physician found applicant dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: Applicant self-referred himself to CAAC for LSD flashbacks. During CAAC screening it was determined that he required Level III treatment for Alcohol. During medical officer screening he was diagnosed as alcohol, and drug dependent. Member refuses treatment, and as per OPNAVINST 5350.4B is considered an alcohol rehab failure. Process for separation.

950810:  NJP for violation of UCMJ, Article 080: Attempted to purchase an illegal substance from a SN on 1Jul95, violation of UCMJ Article 111: Operate a vehicle, to wit: a passenger car while drunk on 8Jul95.
         Award: Forfeiture of $478 per month for 2 months, restriction for 45 days and extra duty for 30 days, reduction to FA and oral admonition. No indication of appeal in the record.
950814:  Drug and Alcohol Abuse Report: Hallucinogens (LSD) abuse, military police July 1, 1995, ashore off duty. CAAC recommended separation not via VA hospital. Physician found applicant dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: Applicant was charged with the possession of a controlled substance after purchasing LSD while attached to TPU, NTC Orlando. Applicant ____ previously diagnosed as alcohol dependent by a Medical officer. Applicant has refused treatment and therefore is considered an alcohol rehabilitation failure.
950906:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse (self-referral).
950906:          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.
950911:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse (self-referral).

950915:  Drug and Alcohol Abuse Report: Halluciongens (LSD) abuse, 1-3 times per week, self referral/disclosure August 20, 1995, ashore off duty. CAAC recommended Level III treatment. Physician found applicant dependent and recommended Level III treatment. Commanding officer recommended Level III treatment. Comments: Twenty two year old single male, with six months total active service. FA (applicant) was a self-referral for LSD and marijuana. Service member was screened by CAAC and a clinical psychologist and found dependent on LSD and marijuana. Member signed page 13 accepting Level III treatment for drug abuse. A review of FA (applicant's) service record revealed a poor performer. Service member will be administratively separated after completion of Level III treatment for both alcohol and drugs.

951001:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951011:  Applicant admitted to NAVALREHCEN for treatment of EOTH and drug dependence.

951107:  Applicant discharge from NARC.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 951109 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In response to applicant’s issue 1, the applicant implies that a permissive doctrine exists whereby one in the military is allowed “one isolated incident". 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. The Board will not grant relief on the basis of this issue.

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 enough 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 80, for attempting to purchase an illegal substance, if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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, DC 20374-5023       


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