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NAVY | DRB | 1999_Navy | ND99-00873
Original file (ND99-00873.rtf) Auto-classification: Denied


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

ex-DCFN, USNR
Docket No. ND99-00873

Applicant’s Request
The application for discharge review, received 990609, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Applicant's Administrative Separation Board did not comply with MILPERSMAN 3640350 in that no record was maintained of the proceedings.

2. Applicant's board was unjustly influenced by intimidation of witnesses by the command.

3. Applicant was denied any meaningful opportunity to demonstrate that he was fully rehabilitated before he was separated.

4. Separation under conditions "other than honorable was unduly harsh for a one-time drug abuser with an otherwise good record and rehabilitation.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant
Copy of DD Form 149
Affidavit to Board for Correction of Military Records
Petitioner's memorandum (9 pages)
Copy of DD Form 214
Forty-six pages from applicant's service record
Two pages from Code of Federal Regulations (CFR Title 32 National Defense 62.4 Policy)
5 pages of Department of Defense Directive 1010.4
Copy of OPNAVINST 5350.4B (10 pages)
Character reference dated August 8, 1999
Character reference dated August 9, 1999
Copy of Certificate of Completion dated July 1999
Copy of unofficial transcript from Mt. Hood Community College for Fall 1996 to Winter 1999
Copy of Emergency Medical Technician card
Copy of Certificate dated July 19, 1997
Copy of Certificate of Completion dated May 7, 1996
Copy of Certificate of Completion dated July 25, 1996 (2 copies)
Copy of certificate dated Fall 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     911011 - 920705  COG

 Period of Service Under Review :
Date of Enlistment: 920706               Date of Discharge: 960411

 Length of Service (years, months, days):

         Active: 03 09 06
         Inactive: None

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 53

 Highest Rate: DC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (4)    Behavior: 3.75 (4)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, Letter of Appreciation (2), Letter of Commendation (2)

 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 :

920707:  Applicant informed being retained in the naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement/drug abuse, to wit: expired registration.

930721:  NJP (No further information found in service record.)
930721:  Retention Warning: Advised of deficiency (Absenting yourself from your unit without authority. Failing to obtain standby person to cover duty before leaving ship on assigned duty day.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950908:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance, violation of UCMJ Article 86: Absence without leave.
         Award: Forfeiture of $545 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFN. No indication of appeal in the record.
950909:  Drug and Alcohol Abuse Report: Cocaine abuse, random urinalysis 25Aug95, 1-3 times per week, ashore off duty. Physician found applicant dependent and recommended separation via VA hospital. Commanding officer recommended separation via VA hospital.
950912:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. [Extracted from documentation submitted by applicant.]
951106:  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 by a vote of 2 to 1 recommended discharge under other than honorable conditions. [Extracted from documentation submitted by applicant.]

960129:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

 960307:  Applicant to NARC NAS MIRAMAR San Diego, CA

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 960411 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 applicant’s issues 1-3, t o permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief. There is no appeal of the decision of an Administrative Discharge Board. The applicant’s only recourse is to appeal to the NDRB or BCNR.

 In response to applicant’s issue 4, o utstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy. NDRB experience has shown that applicants with less than five years sobriety usually have not had sufficient opportunity to demonstrate continuing, positive contributions to society. Therefore, relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle. Verifiable documentation of such a lifestyle is essential. The applicant is encouraged to continue his community service, remain sober, and apply for a personal appearance hearing prior to 11 March, 2011.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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, DC 20374-5023       


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