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NAVY | DRB | 1999_Navy | ND99-00984
Original file (ND99-00984.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-00984

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 did not list any 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620. Discharge in absentia.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. To Whom It May Concern, prior to my separation, I applied for a humanitarian hardship or relocation orders to be located near my daughter in Rocky Mount, NC because of her illness (sickle cell anemia) The severity of her illness was brought to my attention during enlistment by my daughter's specialist and my wife whom at that time had other children to mother.

I was denied of my request, even though proof of my daughter's severity was produced to my chain of command. I later took matters in my own hands and used drugs during an emergency visit to see my daughter in Pitt Memorial Hospital during this time, only to fail a urinalysis, knowing the O tolerance rule of the U. S. Navy, I jeopardized a challenging yet wonderful career to be with my daughter whom was expected to live a short life at that time. I am not a drug or marijuana user but this was my last resort. I am asking you respectfully asking the board to review my case to upgrade my discharge so that I could be considered a veteran and receive the benefits I rightfully deserve.


 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: None
         Inactive: USNR (DEP)              890111 - 890619  ELS
                  USNR (DEP)               890629 - 891009  COG

 Period of Service Under Review :
Date of Enlistment: 891010               Date of Discharge: 910610

 Length of Service (years, months, days):

         Active: 01 08 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 40

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.10 (2)    Behavior: 2.10 (2)                OTA: 2.70

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 30

 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 :

900914:  Civil Conviction: Court unknown for violation of disorderly conduct on 13Sep90.
 Sentence: Five days in jail with four days suspended. [Extracted from CO's message dated 9Jun91.]
910330:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0745, 28Feb91 to 0745, 7Mar91 (8 days/surrendered)
         Award: Bread and water for 3 days. No indication of appeal in the record. [Extracted from CO's message dated 9Jun91.]
910330:  Retention Warning: No further information found in case folder. [Extracted from CO's message dated 9Jun91.]

910507:  Applicant to unauthorized absence 0730, 7May91.

910529:  Applicant from unauthorized absence 1700, 29May91 (22 days/surrendered).

 910608:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 7May91 to 29May91, violation of UCMJ Article 112A: Wrongful use of cocaine between 10-22Apr91.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to AR. No indication of appeal in the record.
910608:  Medical evaluation for drug abuse found no evidence of physiologic or psychologic addiction to drugs or alcohol. [Extracted from CO's message dated 9Jun91.

910608:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
910608:  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.
910609:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

910611:  Drug and Alcohol Abuse Report: Cocaine abuse, urinalysis inspection 910422, less than monthly, ashore off duty. DAPA recommended separate not via VA hospital. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital.

910827:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920825:  Applicant issued orders to report to Transient Personnel Unit no later than 2400, 10 June 1991 for separation. Applicant failed to report in compliance with such orders and is on unauthorized absence from that time and date.

920826:  Message to BUPERS requesting authority to discharge applicant in absentia effective 10Jun91 in the best interest of the service.

920918:  BUPERS granted authority to discharge applicant without return to military control.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 910610 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 issue 1, 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 its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. The NDRB sees no correlation between the applicant’s use of cocaine and his daughter’s illness. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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