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NAVY | DRB | 1999_Navy | ND99-01074
Original file (ND99-01074.rtf) Auto-classification: Denied


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

ex-MM3, USN
Docket No. ND99-01074

Applicant’s Request
The application for discharge review, received 990803, 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 000427. 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 (verbatim)

1. I am requesting that my OTH discharge be upgraded to a General discharge.
Since being released from the service I am approaching my 2 year Clean & Sober mark. I attend AA & NA meetings regularly & sponser 6 others in their recovery.
I am very interested in becoming a Substance Abuse Counselor & would like to attend school. Right now with an OTH I cannot access my G.I. Bill. I request that the board please review my service records & note that I was given an Honorable Discharge in May of 93. I simply returned to the service in Feb of 95 just so that I could get my G.I. Bill. I had other plans of what I was going to major in, but now I have a complete different out look in life. I want to help people who can't help themselves & be there for them in a way the service was trying to be to me. Thank you.

 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: USN                        870824 - 930510  RELAD
         Inactive: USNR (DEP)     861230 - 870823  COG
                  USNR-R           930511 - 941029  HON

 Period of Service Under Review :
Date of Enlistment: 950201               Date of Discharge: 970420

 Length of Service (years, months, days):

         Active: 02 02 20
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rate: MM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.90 (2)                OTA: 3.90        4.0 EVALS
 Performance: 4.00 (2)    Behavior: 2.00 (2)                OTA: 3.32        5.0 EVALS

 Military Decorations: None

 Unit/Campaign/Service Awards: KLM, SASM with 1 Bronze Star, MUC, SSDR

 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 :

951129:  CAAC Screening: Applicant meets the DSM IV Criteria for alcohol dependence. Recommend Level III treatment.
960125:  Applicant admitted to Level III treatment.

960221:  Applicant completed Level III treatment.

 960916:  Senior Medical Officer notified applicant considered a rehabilitation failure.

960926:  NAVDRUGLAB, San Diego, CA reports urine sample received 960913, tested positive for Tetrahydrocannabinol.

961031:  NJP for violation of UCMJ, Article 112A:Wrongfully use marijuana on 13Sep96.
         Award: Forfeiture of $757 per month for 2 months, restriction and extra duty for 45 days, reduction to MM3. No indication of appeal in the record.
970103:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urinalysis of 13 September 1996 and alcohol rehabilitation failure as evidenced by your failure to comply with your directed aftercare program after completing a Level III treatment program on 21 February 1996.
970107:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970116:  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 an alcohol rehabilitation failure, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

970410:  Commander, Cruiser-Destroyer directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

980312:  Commanding officer directed discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): MM3 (applicant) demonstrated an inability to adhere to naval regulations as evidenced by his wrongful use of a controlled substance. He also was an alcohol abuse rehabilitation failure. MM3 (applicant's) package was delayed due to clerical error. MM3 (applicant) was separated on 20 April 1997 for Misconduct due to Drug Abuse and he received an Other Than Honorable discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970420 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, although it is admirable that the applicant is 2 years sober, NDRB experience has shown that applicants with less than five years sobriety usually have not had sufficient opportunity to demonstrate continuing, positive contributions to society. Therefore, relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle. Verifiable documentation of such a lifestyle is essential. The applicant is encouraged to continue his community service, remain sober, and apply for a personal appearance hearing prior to 15 years from the date of discharge.

In addition, 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. No relief will be granted based on this issue.

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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