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NAVY | DRB | 1999_Navy | ND99-00912
Original file (ND99-00912.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND99-00912

Applicant’s Request
The application for discharge review, received 990624, 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. In 1985, at 22 years of age, I was discharged from the United States Navy with a discharge of "under other than honorable conditions "(OTH). At the time of discharge I was informed that this type of discharge could be upgraded after a period of time.

2. The incident that occurred which led to my discharge was unfortunately due to ignorance and immaturity. Immaturity that I strongly regret to this day. Presently, at the age of 36, I am now realizing what military opportunities have been and are still passing me by because of the "OTH" discharge I received during my age of recklessness.

3. Having served 4 years in the United States Navy, and now being a law abiding husband, student, and taxpayer, I am respectfully requesting an upgrade of my discharge from "under other than honorable conditions" to "Honorable".

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     811026 - 811111  COG

 Period of Service Under Review :
Date of Enlistment: 811112               Date of Discharge: 850703

 Length of Service (years, months, days):

         Active: 03 07 22
         Inactive: None

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

Education Level: 12                        AFQT: 36

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (3)    Behavior: 3.30 (4)                OTA: 3.46

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E", SSR

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 :

831019:  NJP for violation of UCMJ, Article 86: UA from 0700, 831010 to 945, 831010 (2hrs, 45mins).
         Award: Forfeiture of $100 per month for 1 month. No indication of appeal in the record.
840412:  Retention Warning: Advised of deficiency (You failed to report to the command that you were arrested and convicted twice of possession of marijuana. This was brought to command's attention on 840410 by report sent to the command. File No. of Report 885277AA2), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

840419:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful regulation, Art. 1139, U.S. Navy Regulations, by failing to report two convictions by civil authorities, for possession of marijuana.
         Award: Forfeiture of $389.55 per month for 2 months (suspended for 1 month), restriction and extra duty for 14 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

840503:  Counseling warning: Applicant was counseled concerning consequences of continued drug abuse incidents. He was notified of corrective actions and assistance available.

840517:  Medical evaluation found no psychological or physiological dependence to drug or alcohol.

840523:  Substance Abuse Report: indicates medical officer determined applicant as not dependent, is amendable and eligible, recommended Level I.

850426:  NAVDRUGLAB NORFOLK, VA urinalysis report indicates applicant testes positive for THC.

850506:  Substance Abuse Report: indicates medical officer determined applicant as not dependent, is amendable and eligible, recommended Level III.

850510:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Award: Forfeiture of $396.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

850524:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Award: Forfeiture of $347.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

850516:  Medical evaluation found the applicant to be not drug or alcohol dependent.
850601:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

850601:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.
850610:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

850629:  CNMPC 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 850703 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 issues 1 and 3, the Board determined these issues are without merit. 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 are 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. Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant claims the incident that occurred, which led to his discharge, was due to ignorance and immaturity. The Board agrees with the applicant. However, ignorance and immaturity are not acceptable justification for repeated violations of the UCMJ. The applicant was fully aware the Navy’s policy on drug and alcohol abuse and made a conscious decision to use illegal drugs. The discharge was proper and equitable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/84, effective
17 Sep 84 until 15 Dec 85, 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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