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NAVY | DRB | 1999_Navy | ND99-01162
Original file (ND99-01162.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND99-01162

Applicant’s Request
The application for discharge review, received 990830, 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 000512. 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. I believe that my poor military record was the result of a drug dependency problem. If I had received an opportunity for counseling and or drug treatment. I believe that I could have finished my enlistment. But all I received was practically an instant discharge.

I support the above statement with the following facts: After being discharged, with the help of family and friends, I quit using drugs, went to college, received a degree, and have been gainfully employed untill last year.

I now suffer from paraplegia due to multiple sclerosis. Understandably I have plenty of time to reflect on my past. I respectfully ask for a review of my discharge and that I be given an upgrade.

Thank you for your time.

Additional issue:

2. If I might add one more thing. After starting this form and gathering data I have returned to college. My goal is to retrain into a profession that I can perform in a wheel chair. I have included a copy of my first semester grades. A upgrade of my dishcharge would help me greatly when I get ready to start my new job search. Thank you.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Bevill State Community College transcript of grades
Copy of National Education Center, National Institute of Technology Campus transcript of grades
Job/character reference dated August 2, 1999
Job/character reference dated August 23, 1999
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     821101 - 821121  COG

 Period of Service Under Review :
Date of Enlistment: 821122               Date of Discharge: 841105

 Length of Service (years, months, days):

         Active: 01 11 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 61

 Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.50 (2)    Behavior: 2.73 (4)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: 56

 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 :

821122:  Applicant signed USN Drug Abuse Statement of Understanding.

831104:  Applicant declared a deserter.

 831229:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0730, 4Oct93 to 1605, 29Nov93 (56 days/surrendered).
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Fine of $150.00 for 3 months, confinement at hard labor for 20 days; thereafter to perform hard labor without confinement for 40 days, reduction to MMFR.
         CA 840107: Sentence approved and ordered executed.
         SA 840125: Approved as approved by the CA.

840114:  Applicant released from confinement and restored to full duty.

840919:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112A (2 specs).
         Specification 1: Wrongfully possess 1/2 gram of hashish on 7Sep84.
         Specification 2: Wrongfully use 1/2 gram of hashish on 7Sep84.
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Forfeiture of $395.00, confined on bread and water for 3 days, restriction for 48 days, reduced to MMFR
         CA action 840919: Sentence approved and ordered executed.

840928:  Substance Abuse Report: Marijuana abuse, less than monthly, June 1979 to present, ashore off duty. Command/supervisor September 1984. SAC evaluation found applicant not dependent and recommended separation not via VA hospital. Commanding officer recommended separation. Comments: SNM received Summary Court-Martial for VUCMJ Art. 112(A) 9/84 and referred to Command SAC for drug abuse (THC). Determined not dependent and not eligible for Level I counseling. One previous Special Court-martial for VUCMJ Art 86 (12/83). No known civil actions. Potential for future useful naval service poor.

840928:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

841008:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by your illegal or wrongful use or possession of controlled substance(2) and special court-martial for unauthorized absence of 56 days. [Extracted from CO's message dated 19Oct84.]
841008:          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. [Extracted from CO's message dated 19Oct84.]
841019:  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.

841024:  CNMPC 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 841105 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 claims his poor military record was the result of drug dependency and he did not receive drug counseling and treatment. The medical evaluation from a competent medical authority determined the applicant was a drug user but was not drug dependent. Therefore, there was no legal requirement for the Navy to enroll the applicant in drug treatment/counseling program. Drug abuse requires mandatory processing for administrative discharge. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant states an upgrade to his discharge would help him get ready to start his new job. Unfortunately, the Board is bound to evaluate each discharge based on the propriety and equity of the discharge process. Additional consideration is given to post-service accomplishments, that establish the member as a creditable member of society, to determine if clemency is warranted. The discharge was proper and equitable and the applicant did not provide any documentation to support post-service clemency. The applicant’s specific circumstances of his illness were also considered. Unfortunately, the Board determined that the facts and circumstances unique to this case do not warrant upgrading the applicant’s discharge. The discharge was proper and equitable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/84, effective
17 Sep 84 until 15 Dec 85, 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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