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NAVY | DRB | 1999_Navy | ND99-01108
Original file (ND99-01108.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-01108

Applicant’s Request
The application for discharge review, received 990817, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Delray Beach, FL. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Whether conflicting testimony presented by my self was properly considered in administrative proceedings resulting in my other that honorable discharge.

2. Whether my past character traits should impact my career and life style for the rest of my life.

3. Whether I should be denied VA education benefits at a time when my life has changed for the better and I am now a mature and responsible person.

4. Whether the testimony of my fellow Petty Officers on my behalf was given the proper weight in coming at a decision on my discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Administrative Discharge Proceedings from Naval Legal Service Office (2pgs)
Copy of DD Form 214
Letter of Commendation from MAD DAD of Greater Delray Beach
Copy of Certificate of Completion from Orkin
Copy of Certificate of Achievement in Orkin Creative Selling Skills
Copy of Outstanding Salesperson Achievement Award
Reference Letter from Pastor of St. John Primitive Baptist Church
Character Reference Letters (3)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     910430 - 910519  COG

 Period of Service Under Review :
Date of Enlistment: 910520               Date of Discharge: 930104

 Length of Service (years, months, days):

         Active: 01 07 15
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 12                        AFQT: 40

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.73 (3)    Behavior: 2.86 (3)                OTA: 2.86

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 1

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 :

920319:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86, Unauthorized absence from 0630, 920318 until 0630, 920319), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920723:  NAVDRUGLAB NORFOLK, VA urinalysis report indicates applicant tested positive for cocaine.
920727:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine on or about 920530 - 920630.
         Award: Forfeiture of $440.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

920730:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all incidents of drug abuse in your enlistment.
920730:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920904:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
         Award: Forfeiture of $394.00 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
921029:  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 under other than honorable conditions.

921107:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

921117:  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 930104 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).

Responding to the applicant’s first and fourth 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.

In the applicant’s second and third issue, he implies that his post-service conduct is of such merit as to overshadow his misconduct. 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. The applicant provided some documentation of his post-service. At this time, the Board feels 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), effective 15 Aug 91 until 04 Mar 93, 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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