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NAVY | DRB | 1999_Navy | ND99-00973
Original file (ND99-00973.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00973

Applicant’s Request
The application for discharge review, received 990713, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000411. 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. My "Other than honorable conditions discharge", was inequitable because I voluntarily went to Chief C_ (Service Command DAPA) and in confidence told him that I had tried smoking marijuana, I was frightened and felt as though I needed help. Chief C_ told me that I would be sent to the V. A. Hospital for help and concealing, instead I was served with discharge papers. I feel this was a breach of confidentiality.

2. DAAR Report; Section 10. I tried marijuana, I was not using it on a regular basis, I was not using it 1-3 times weekly; Section 18. I was not dependent on marijuana.

3. DAAR Report; Section 22. I wasn't separated from the service via the V. A. Hospital.

4. DAAR Report; Section 29. Contrary to written statement I did not receive any non-judicial punishment, reduction in rank, reduction in pay or extra duty.

5. I had academic problems in Tech-Core and decided that I did not want to continue with that schooling. I requested a transfer to train for xerographer, this request was denied with no explanation given. I feel as though the Faculty was "turned off" by my request and this influenced future decisions regarding me on their part.

6. (EQUITY ISSUE) As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
 Copy of DD Form 214
 Drug and Alcohol Abuse Report dated 26 March 1996
Character reference dated 22 April 1999
Character reference dated 23 April 1999
Character reference dated 14 February 1999
Character reference dated 10 March 1999
FAA Flight Certificate from Community College of Beaver County
FAA Flight Certificate from Community College of Beaver County
Pilot's Flight Log
Copy of pilot's license
Community College of Beaver County transcript
Statement from applicant dated 10 May 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)              950110 - 950724  COG

 Period of Service Under Review :
Date of Enlistment: 950725               Date of Discharge: 960503

 Length of Service (years, months, days):

         Active: 00 09 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 76

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                           Behavior: NMA             OTA: NMA

 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 3630620.

 Chronological Listing of Significant Service Events :

960305:  Officer in Charge notified of NADAP self-referral for rehabilitation of applicant.
960306:  Alcohol and Drug Evaluation interview: Self disclosure of marijuana use. Impression: Alcohol abuse, possibly early alcohol dependence. Cannabis abuse. Recommendation: Suspect disclosure of past chemical involvement maybe minimized. Would offer Level 3 treatment prior to Adsep.
960319:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your chronological record of medical care of 6 March 1996.
960319:          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.
960322:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): Enclosures (1) through (4) are forwarded in support of subject administrative separation action. On 5 March 1996, SA (applicant) reported to the command DAPA as a self-referral, which was later determined to be an invalid self-referral. SA (applicant) is considered to have no further potential for naval service because he approached DAPA in order to be discharged from the naval service and not in search of treatment. Pursuant to reference (a), I strongly recommend that SA (applicant) be separated from the naval service with a discharge characterized as Under Other Than Honorable Conditions.

960326:  Drug and Alcohol Abuse Report: Marijuana abuse, self-referral/disclosure 4Mar96, 1 to 3 times per week. Medical recommended separate via VA hospital. Physician found applicant dependent and recommended separate via VA hospital. Commanding officer recommended separate via VA hospital. Comments unreadable.

960419:  BUPERS 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 960503 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).

Regarding the applicant’s first issue, the Board assumed regularity in the conduct of governmental affairs. In the Commanding Officer’s recommendation he states the following: “On 5 March 1996, SA (applicant) reported to the command DAPA as a self-referral, which was later determined to be an invalid self-referral. SA (applicant) is considered to have no further potential for naval service because he approached DAPA in order to be discharged from the naval service and not in search of treatment”. Based on this information, and no contrary evidence from the applicant, the Board will deny relief based on this issue.

The issues the applicant raises concerning the Drug Abuse and Alcohol Report has no bearing on the propriety or equity of the applicant’s discharge. Relief denied.

Concerning the applicant’s fifth issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Relief is therefore denied.

The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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, is considered. While the Board was impressed with the applicant’s post service conduct, the applicant's efforts need to be more encompassing than those provided. The applicant should have produced documentation of his community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He 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. Relief denied.


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, D.C. 20374-5023     


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