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NAVY | DRB | 2000_Navy | ND00-00052
Original file (ND00-00052.rtf) Auto-classification: Denied


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

ex-LT, USN
Docket No. ND00-00052

Applicant’s Request
The application for discharge review, received 991014, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant designated the Veterans of Foreign Wars as representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000713. 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, authority: SECNAVINST 1920.6A and BUPES ORDER 0307 OF 30 Jan 87.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because it was based on one isolated incident in nine years of service with no other adverse action.

2. The military counsel that I received advised me that the best thing to do was to request an OTH so that no "crime" would listed in my record. I have found that to be wrong advice.

3. My record of service prior to this incident was impeccable.

4. My shame over the incident is what caused me to believe counsel as he reminded me that the OTH request would be faster and a court-martial would not be forthcoming.

5. I have made efforts to show the community of San Diego and my family that I made a mistake and have rise about it.

6. My involvement with the city and the youth of the city has been a marvelous example of the person that I really am. I am and always will be a proud veteran.

Submitted by Veterans of Foreign Wars:

7. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of discharge, we ask the Board to consider the following outstanding post-service conduct in the recharacterization of the applicant's discharge:

•         Educational pursuits allowed the applicant to attain his B.S. in Music Education.
•         Solid employment history with over 7 years as a music teacher. Reference letter's of recommendation from his former employer. The applicant's personal resume is an excellent example of the professionalism and dedication he has displayed since his discharge.
•         The applicant is also married and raising a family.
8. We ask the Board to consider the applicant's discharge IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.





 Documentation
 In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's Accomplishments
Applicant's Resume
Newspaper clipping (The Honolulu Advertiser) about applicant dtd Jan 13, 98
Newspaper clipping (The San Diego Union-Tribune) about applicant dtd Apr 4, 97
Letter of Recommendation from employer, S_ K. C_ (F_ P_ School) dtd 21 Jul 99
Letter of Employment from W. L_ P_ (F_ P_ School) dtd 21 Jul 99

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               780710 - 800313  To accept commission
         Inactive: USNR            780630 - 780709  To enlist USN

 Period of Service Under Review :
Date of Commission: 800314               Date of Discharge: 870311

 Length of Service (years, months, days):

         Active: 06 11 28
         Inactive: None

 Age at Entry: 24                          Years Obligated: 6

Education Level: 16                        AFQT: 80

 Highest Rate: LT

 Final Officer Performance Evaluation Averages : All officer performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM (Indian Ocean), HSM, SSDR (w/Bronze Star), NE"E"R

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT - DRUG ABUSE, authority: BUPERS ORDER 0307 OF 30 JAN 87 and SECNAVINST 1920.6A.

 Chronological Listing of Significant Service Events :

780627:  Applicant signed USN drug abuse certification form stating the USN drug policy.
860811:  Naval Drug Lab, San Diego, CA: Reported positive for cocaine as result of a directed random urinalysis.

860814:  Medical Examination: Applicant evaluated by medical officer and found not to be drug dependency - either physical or psychological.
860814:  Charges preferred to NJP for violation of the Uniform Code of Military Justice (UCMJ) Article 112a: Wrongful use of a controlled substance (Cocaine)

860925:  A pplicant requested an administrative discharge under Other Than Honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article: 112a - wrongfully use a controlled substance, to wit: cocaine. The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

861027:  Commanding Officer (CO), USS BROOKE, forwarded applicant's request for administrative discharge, Other Than Honorable, in lieu of trial by court-martial. CO, USS BROOKE did not concur with administrative discharge in lieu of trial by court-martial.

861108:  COMCRUDESGRU FIVE forwarded request for discharge in lieu of trial by court-martial, recommending member's request be denied and that member be held accountable for his actions.

861215:  BUPERS recommended to the Secretary of the Navy (SECNAV) that member's resignation be accepted and grant him an Other Than Honorable discharge by reason of misconduct - Drug abuse in lieu of trial by court-martial.

861222:  SECNAV approved the applicant’s discharge, Other Than Honorable, in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870311 under other than honorable conditions in lieu of a trial by court-martial by reason of misconduct - drug abuse (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issue 1, the Board determined this issue is without merit. The applicant claims his discharge was inequitable because it was based on one isolated incident in nine years of service with no other adverse action. The applicant was an officer in the Navy. He showed total disregard for Navy regulations and violated the special trust and confidence the US Navy placed in him. The applicant admitted to using illegal drugs and requested admin separation in lieu of court-martial, which was approved. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 2, the Board determined this is a non-decisional issue and requires no response. No further comment.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant states his record was impeccable prior to his drug incident and the Board agrees. However, drug abuse requires mandatory processing for separation. The applicant’s discharge was proper and equitable. Relief denied.

In the applicant’s issue 4, the Board determined this is a non-decisional issue and requires no response. The applicant was administratively discharged as requested and did not go to court martial. No further comment.

In the applicant’s issue 5, the Board determined the applicant has made efforts to establish a reputation of good character. In addition to employment, however, the applicant must show he no longer uses drugs, does not have a police record and has provided some community service, beyond his chosen profession, to make reparation for his misconduct. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 6, the Board determined this issue is without merit. The applicant claims involvement with the city and its youth. The Board recognizes the applicant’s involvement with the city and its youth through his musical profession. However, the Board determined that because of the applicant’s status as an officer in the Navy and the type of misconduct he committed, he does not warrant an upgrade to his discharge, at this time. Additionally, the applicant has not provided any documentation to show that he is drug free and does not have a criminal record with civil authorities. Based on the information provided, relief is denied.

In the applicant’s issue 7, the Board determined this issue is without merit. The applicant has not provided sufficient documentation to support his claim of post-service accomplishments to warrant recharacterization of his discharge. The Board recognizes his educational pursuits and employment history over the past 7 years. The accomplishments listed are insufficient to warrant upgrading the applicant’s discharge. Relief denied.

In the applicant’s issue 8, the Board determined this issue is without merit. The applicant asked the Board to reconsider the propriety of his discharge. The applicant admitted to drug abuse and received an OTH discharge in lieu of court martial, as requested. Additionally, he signed a statement that he was satisfied with his legal counsel and understood the ramifications of an Other Than Honorable discharge. Relief denied.

The following information is provided for the applicant’s edification. In addition to the service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency. Those contributions that would be looked upon favorably, if verified, include but are not limited to educational pursuits (transcripts, diploma, degree or technical certificate), employment performance record (letter from employer), being a contributing member of society and making a positive impact in the community through volunteer work (letter from civic organization). The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt at making amends for the misconduct he committed during the period of service under review.

The 15 year window, during which time applicants may appeal their discharge, was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions. The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. The Secretary of the Navy Instruction 1920.6A of 21 November 1983 (Administrative separation of Officers), establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.
 B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C. 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.

D. 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.

E. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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