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NAVY | DRB | 1999_Navy | ND99-01199
Original file (ND99-01199.rtf) Auto-classification: Denied


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

ex-ACAN, USN
Docket No. ND99-01199

Applicant’s Request
The application for discharge review, received 990909, 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 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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge was inequitable because it was based on one isolated incident in five years of exemplary service with no other adverse action. My records include supporting documentation from peers and higher ranking personnel.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Job/Character reference from Kelly Services
Copy of Thanks Certificate dated September 25, 1997
Copy of Certificate of Achievement dated November 25, 1996
Copy of Certificate of Achievement dated March 19, 1999
Copy of DD Form 214
Copy of character witness dated December 2, 1993
Character reference dated December 3, 1993
Character witness dated December 1, 1993
Character witness dated December 3, 1993
Character witness dated December 3, 1993
Copy of Enlisted Performance Evaluation Reports for 92Jul01 to 93Jun13, 92Jan16 to 92Jun30, 91May15 to 92Jan15, 90Feb01 to 90Dec20, and 89Feb02 to 90Jan31
Copy of Honor Certificate dated May 14, 1991
Copy of Letter of Commendation dated May 14, 1991
Copy of memorandum dated March 27, 1990
Copy of citation for 20 March 1990 to 28 August 1990
Copy of letter re: designation as ATC-Facility watch supervisor dated May 1, 1992
Copy of letter re: outstanding physical readiness achievement dated February 3, 1992 and December 16, 1992
Letter from O.T.M.L. Productions, Inc dated November 6, 1991
Copy of police report dated April 6, 2000
Copy of Certificate of Attendance dated March 10, 2000.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880801 - 880824  COG

 Period of Service Under Review :
Date of Enlistment: 880825               Date of Discharge: 940211

 Length of Service (years, months, days):

         Active: 05 05 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (22 months extension)

 Education Level: 12                        AFQT: 55

 Highest Rate: AC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.43 (6)    Behavior: 3.43 (6)                OTA: 3.43

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, Letter of Commendation, SSDR w/Bronze Star, NDSM, BER,MUC

 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 :

930915:  NAVDRUGLAB San Diego, CA reports urine sample received 930908 tested positive for cocaine.

 930922:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

930927:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, unit sweep urinalysis 930915. Medical officer recommended separate not via VA hospital. Physician found applicant not dependent and separate not via VA hospital. Commanding officer recommended separate not via VA hospital.

931008:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 8Sep93.
         Award: Forfeiture of $541.05 per month for 2 months, restriction for 30 days, reduction to ACAN. Appealed 931008. Appealed denied 931104.
931105:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
931105:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
931209:  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.

931228:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

940128:  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 940211 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 applicant states that this was “one isolated incident in five years.” The Board found that although the applicant may have had only one incident, it was a very serious incident of misconduct, which unfortunately overshadowed the otherwise good in the applicant’s service record.

The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

 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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