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NAVY | DRB | 1999_Navy | ND99-00959
Original file (ND99-00959.rtf) Auto-classification: Denied


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

ex-AZAA, USNR
Docket No. ND99-00959

Applicant’s Request
The application for discharge review, received 990709, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to reflect a more positive separation. 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 000420. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

The NDRB did note an administrative error on the original DD Form 214. Block 12a, Date Entered AD This Period should read: “96 01 17” vice “96 03 26”, Block 12c, Net Active Service This Period should read: “01 01 06” vice “00 11 27”. The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The discharge and method of discharge clearly deprived me of my right to the due process of law. While under investigation, I did admit to the violation of the UCMJ, Article 112a (wrongful use of a controlled substance) through information given by my counsel (LT. D_ K_ G_, USNR) it was brought to my attention that according to the DoD personnel handbook I was not offered a chance to try treatment, counselling or rehabilitation. Further the DoD is responsible for discipline or discharge of alcohol or drug abusers who cannot or will not be rehabilitated. The USN inverses a "zero tolerance" policy, but at the same time contradicts it's policy by allowing treatment and counsel for select personnel. Lt. G_ also provided me with the proceedings in the case of Dalton vs Rogers. In this case the defendant also received a general discharge, under honorable conditions. The only difference his case was that the Navy was directed to reinstate the serviceman due to failure to follow DoD policy by discharging the petitioner without considering his potential for rehabilitation! My LCPO AZC W_, was the only one in my chain of command that gave me encouragement and direction in my time of hardship. No one else wanted to give me anything but immediate separation. My executive officer's comments were "Go directly to Capt. Mast, this guy needs to be out of my Navy" It is evident he did not know his rehabilitative potential of his staff. It is my prayer and request that the Board finds I was deprived of my right to due process of law in connection with my administrative processing. Furthermore, it is my prayer that the Board will please reconsider my general discharge, under honorable conditions. That I may be awarded a honorable discharge, and my narrative reason for separation (DD Form 214 Block 28) and separation code (Block 26). be changed to reflect a more positive separation. I do realize my conduct was not one of honor, (or law) but keeping in mind the process of which my superiors displayed was also unlawful. Due to my unwilling and early release from the Navy I lost my Montgomery G.I. Bill benefits and $1200 I had put away into this fund, without a chance for employment and education, the negligence of my peers has left me and my family in a serious bind. Once more, I pray that the board will recognize my dilemma and help out in any way possible.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Six pages from applicant's service record
Copy of Leave and Earning Statement for period covering 01-28Feb97

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950919 - 960116  COG

 Period of Service Under Review :
Date of Enlistment: 960117               Date of Discharge: 970322

 Length of Service (years, months, days):

         Active: 01 01 06
         Inactive: None

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 69

 Highest Rate: AZAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

960906:  NAVDRUGLAB, Jacksonville, FL reports urine sample received 960927 tested positive for THC. [Date of message unreadable. Other information extracted from Memorandum dated 22 October 1996.]
961024:  Drug and Alcohol Abuse Report: Marijuana abuse, random urinalysis 6Sep96. Commanding officer recommended separate via VA hospital. Comments: Member does not have potential for further naval service.
961112:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 6 September 1996.
         Award: Forfeiture of $437.40 per month for 1 month, extra duty for 30 days. No indication of appeal in the record.
961114:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of marijuana.
961125:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970128:  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 general (under honorable conditions).

970226:  Letter of deficiencies submitted by counsel. [Date changed from 1996 to 1997.]

970306:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

970313:  Medical evaluation for drug abuse found the applicant not to be physiologic/psychologic to drugs or alcohol to be a drug abuser, not drug dependent.
970317:  Commanding Officer, Naval Air Station, Joint Reserve Base, New Orleans directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

970513:  Message from BUPERS to NAS JRB NEW ORLEANS LA: Applicant did not qualify for discharge as processed. Applicant's administrative board was improperly constituted. Per MPM 3640350.4.A(4), administrative board for reservists must be composed of officers. At applicant's administrative board, one member was a MCPO. The above is intended to assist you in future processing. No further action required in this case.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970322 general (under 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).
The NDRB found the applicant’s issue that he was not offered a drug rehabilitation treatment to be without merit. The applicant was evaluated by a medical officer and found to be not drug dependent, and rehabilitation was therefore not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that drug abuse/misconduct was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.











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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