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NAVY | DRB | 1999_Navy | ND99-01006
Original file (ND99-01006.rtf) Auto-classification: Denied


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

ex-EOCR, USN
Docket No. ND99-01006

Applicant’s Request
The application for discharge review, received 990721, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. 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 000417. 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 should be upgraded to at least a "General Under Honorable Condition" because a considerable amount of time has gone by since my discharge.

To this day, I've never used steroids. I have learned from my mistake.

The service member who was with me when we purchased steroids received a "General" discharge.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900907 - 910107  COG

 Period of Service Under Review :
Date of Enlistment: 910108               Date of Discharge: 950106

 Length of Service (years, months, days):

         Active: 03 11 29
         Inactive: None

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 12                        AFQT: 53

 Highest Rate: EOCN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.32 (5)    Behavior: 3.24 (5)                OTA: 3.32

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, OSR

 Days of Unauthorized Absence: 27

 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 :

910226:  Retention Warning: Advised of deficiency (You have repeatedly been counseled on your behavior and threatening gestures and or words to fellow shipmates. You were witnessed speeding while in truck phase and were counseled on the subject along with EMI (Extra Military Instruction).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910307:  NJP for violation of UCMJ, Article 92: Failure to obey a written order or regulation on 3 March 1991, violation of UCMJ Article 134: False or unauthorized pass offenses on 3 March 1991.
         Award: Correctional custody for 30 days. No indication of appeal in the record.
920124:  NJP for violation of UCMJ, Article 92: Dereliction of duty, violation of UCMJ Article 117: Wrongfully use provoking words, violation of UCMJ Article 134: Disorderly conduct.
         Award: Forfeiture of $444 per month for 2 months, extra duty for 30 days, reduction to EOCR. No indication of appeal in the record.
921229:  Retention Warning: Advised of deficiency (Having a quick temper. Using provoking words to instigate fights. Being unable to get along with co-workers on and off duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

94XXXX:  Medical evaluation for drug abuse found the applicant to be non-dependent for drug abuse. [Extracted from CO's letter dated 24Oct94.]
940714:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by all drug incidents in your current enlistment and misconduct due to Commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.
940808:  Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
940818:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from 16JUN94 to 13JUL94 (27 days).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missed movement on 16JUN94.
         Charge III: violation of the UCMJ, Article 112A:
         Specification: Wrongfully possessed 18 milliliters of anabolic steroids.
         Finding: to Charge I, II and III and the specification thereunder, guilty.
         Sentence: Forfeiture of $55.00, confinement for 15 days, reduced to EOCR.
 940902:  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 and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940922:  Drug and Alcohol Abuse Report: Anabolic steroids, civilian police May 14, 1994, ashore off duty. Commanding officer recommended separate not via VA hospital.
941024:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use) and misconduct due to Commission of a serious offense.

941223:  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 950106 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 should be upgraded because a considerable amount of time has past. 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.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant states he has never used steroids and in the same sentence states he has learned from his mistakes. The applicant’s military record contains a statement from him admitting to buying steroids. Possession of steroids is a violation of the UCMJ. An Admin separation Board voted unanimously that the applicant had committed misconduct due to commission of a serious offense and recommended separation, with a characterization of discharge as Other Than Honorable. The applicant’s commanding officer and BUPERS supported the recommendation of the Admin Separation Board. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant claims the service member who was with him when he purchased the steroids received a “General” discharge. That has no bearing on the discharge the applicant received. An individual’s entire service record is evaluated when the characterization of discharge is determined and that individuals service record alone. In addition to purchasing steroids, the applicant went to NJP for failure to obey a written order or regulation, false or unauthorized pass offenses, dereliction of duty, wrongful use of provoking words, and disorderly conduct. He received two retention warnings before the final blow to his career of buying steroids. The discharge was proper and equitable. 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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