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NAVY | DRB | 1999_Navy | ND99-01043
Original file (ND99-01043.rtf) Auto-classification: Denied


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

ex-HTFA, USN
Docket No. ND99-01043

Applicant’s Request
The application for discharge review, received 990728, 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 designate a 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: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 My name is W_ L_, Jr. I served in the U.S. Navy from August 28, 1989 thru April 15, 1992. I was given a General Under Honorable Discharge for drug use. It was very unfortunate and I take full responsibility for my action. At the time of this mistake, and it was a mistake, I was stationed on the USS PROTEUS (AS 19). I was changing command to PSD HT "A" School in Philadelphia. While at home I used the illegal drug, not realizing the circumstances it would have on my life. I was dropped from school in the middle of the courses. After Captains Mass I was reinstated and completed the courses. At this time I waive the right of counsel, and would ask the board to upgrade my discharge from General Under Honorable, to Honorable discharge. This is asked so I may continue my education. I'm not bitter just better.

I voluntarily enrolled myself in a drug treatment program. I completed the program and have remained clean and sober ever since. I regret losing my opportunity to complete my career in the Navy. With my benefits from an upgrade in my discharge, I will have the advantage of higher education to secure a long term career that will support my new family and myself. Sincerely, (Applicant)

 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)     890822 - 890827  COG

 Period of Service Under Review :
Date of Enlistment: 890828               Date of Discharge: 920415

 Length of Service (years, months, days):

         Active: 02 07 18
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4 (13 months extension)

 Education Level: 12                        AFQT: 27

 Highest Rate: HTFN (E-3)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (2)              Behavior: 3.8 (2)                 OTA: 3.8

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :
890829:  Briefed on the Navy's policy on Drug and Alcohol Abuse.

 891103:  NJP for violation of UCMJ, Article 128: on or about 89OCT09, unlawfully slapped SR P_ in the side of the head.
         Award: Forfeiture of $323.10 per month for 1 months. No indication of appeal in the record.

891103:  Retention Warning: Advised of deficiency (assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910729:  DAPA Referral/Consult for alcohol dependency screening. Diagnosis: psychologically dependent. Antabuse not recommended. Treatment recommendation - CAAC out-patient treatment program (Level II) and AA meetings two times weekly.
920123:  NAVDRUGLAB, GLakes, IL: Urinalysis sample taken on 09Jan92, received by lab on 14Jan92, applicant positive for cocaine/marijuana.
920206:  NJP for violation of UCMJ, Article 112a(2 specs) wrongful use of cocaine on or about 06DEC91 to 06Jan92 and wrongful use of marijuana on or about 06DEC91 to 06Jan92.Award: Forfeiture of $457.50 per month for 2 months (1 months suspended for six months), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
920220:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer's Non-Judicial Punishment on 6 Feb 1992.
920220:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. Applicant objected to the discharge and the characterization of service.
920304:  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 with a general (under honorable conditions).

920313:  MEDCLINIC, Philadelphia: Medical evaluation for drug abuse found the applicant not drug dependent, has had substance abuse problem.

920319:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "We concur with the recommendation of the Administrative Board. FA (Applicant), reported to this command as an HT "A" student on 04 January 1992. On 06 January 1992, FA (Applicant) was given a routine urinalysis test which tested positive for THC and Cocaine by DOD Lab Testing. On 06 February 1992, FR (Applicant) was taken to NJP were he received 45 days restriction, 45 days extra duty, ½ months pay for 2 months, 1 month was suspended for 6 months, and RIR to E=2 and was to be processed for an administrative separation. On 20 February 1992, FR (Applicant) was given the opportunity to receive an Administrative Board. On 04 March 1992, and Administrative Board was convened per FA (Applicant)'s request. The result of the Administrative Board was that FA (Applicant) be separated due to misconduct due to drug abuse. A general discharge was awarded. I strongly feel it would be in the best interest of the U.S. Navy to separate this member with the prescribed separation of a General discharge based on the commission of misconduct due to drug abuse."

920331:  BUPERS directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920415 with an under honorable conditions (general) 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 has no obligation to change the applicant’s discharge in order to allow him to go back to school. The applicant was briefed on the Veterans’ Educational Assistance Act of 1984 (G.I. BILL). Specifically, he was briefed that an Honorable discharge after completion of 36 months on active duty would be required for entitlement to benefits under the G.I. BILL.

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 in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.

 Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, 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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