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NAVY | DRB | 1999_Navy | ND99-00910
Original file (ND99-00910.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND99-00910

Applicant’s Request
The application for discharge review, received 990622, 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 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 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

 1. I believe my discharge was inequitable. It was base on one specific event. This discharge is not reflective of my military service. I believe the documents attached prove that my military service was in fact honorable.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
DD Form 214
Copy of DD Form 214
Letter of Appreciation
Copy of Certificate of Graduation from Basic Underwater Demolition Seal Training
Copy of Evaluation Report & Counseling Record (2pgs)
Nomination Letter for Junior Sailor of the Quarter (2pgs)
Copy of Letter of Commendation
Letters of Support from UCLA Medical Center (3)
Letter of Appreciation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     930927 - 940814  COG

 Period of Service Under Review :
Date of Enlistment: 940815               Date of Discharge: 971016

 Length of Service (years, months, days):

         Active: 03 02 02
         Inactive: None

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

 Education Level: 12                        AFQT: 72

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.16 (6)    Behavior: 3.16 (6)                OTA: 2.68

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Pistol Marksmanship Ribbon(Expert), Rifle Marksmanship Ribbon (Expert)

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 :

970929:  NAVDRUGLAB SAN DIEGO,CA urinalysis report indicates applicant tested positive for THC.
971001:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance (marijuana).
         Award: Forfeiture of $505.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

971001:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by CO's NJP on 971001 for wrongful use of marijuana.
971001:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.
971001:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by NJP on 971001 for wrongful use of marijuana.

971002:  DAAR indicates marijuana abuse, on or about 970922, as a result of a unit sweep urinalysis. Applicant found not dependent by clinical psychologist. Applicant was not amenable to counseling/rehabilitation.

971009:  COMPHIBGRU THREE authorized the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

971010:  Applicant refused medical officer evaluation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971016 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 Board determined this issue is without merit. The applicant states his discharge was inequitable because it was based on one specific event. The applicant does not mention that the one event, which resulted in his discharge (drug abuse), requires mandatory processing for separation, in accordance with Navy directives. The applicant’s service may have been honorable prior to his drug use, but at the time of his violation of the UCMJ, the characterization of his service changed to other than honorable. The discharge was proper and equitable. Relief denied.

The following is provided for the applicant’s edification. 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, subsequent to leaving military service. The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed. This applicant’s discharge was proper and equitable. Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). The applicant did not provide any documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements. He remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.
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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