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NAVY | DRB | 2000_Navy | ND00-00076
Original file (ND00-00076.rtf) Auto-classification: Denied


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

ex-RM3, USN
Docket No. ND00-00076

Applicant’s Request
The application for discharge review, received 991019, 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 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 (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge was inequitable because it was based on one NJP incident in 6 years of service with no other adverse action.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Seven pages from applicant's service record
Copy of applicant's resume
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR              810504 - 840803  HON
         Inactive: USNR (DEP)     810413 - 840503  COG

 Period of Service Under Review :
Date of Enlistment: 840804               Date of Discharge: 870911

 Length of Service (years, months, days):

         Active: 03 01 08
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 30

 Highest Rate: RM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (6)    Behavior: 3.60 (6)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM, NER, GCM, SSDR with 2 Bronze Stars

 Days of Unauthorized Absence: 7

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 :

870330:  NAVDRUGLAB, San Diego, CA reports urine sample received 870323 tested positive for cocaine.
870402:  NJP for violation of UCMJ, Article 86: Absent himself from his unit on 1100, 16Mar87 until 0805, 20Mar87 (3 days/surrendered), violation of UCMJ Article 112A: Wrongful use of cocaine on 20Mar97.
         Award: Forfeiture of $450 per month for 2 months, extra duty for 45 days, reduction to RM3. No indication of appeal in the record.
870420:  NAVDRUGLAB, San Diego, CA reports urine sample received 870410 tested positive for cocaine.
870421:  NAVDRUGLAB, San Diego, CA reports urine sample received 870414 tested positive for cocaine.
870421:  CAAC screening: Applicant was found to be a drug abuser.

870429:  NAVDRUGLAB, San Diego, CA reports urine sample received 870421 tested positive for cocaine.
870428:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your illegal or wrongful use of cocaine, which resulted in CO's NJP on 2 April 1987 and your positive urinalysis for cocaine while under the command surveillance program (2X4), administered by Naval Station Long Beach on 10 April 1987.
870505:  Applicant to unauthorized absence 0730-1145, 5May87.

 870508:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
870610:  Medical evaluation for drug abuse found the applicant to be a recreational drug abuser. Recommend residential drug treatment NDRC Priority II, CAAC counseling for alcohol and other drug abuse and education to prevent for alcohol and other drug abuse.

870626:  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.
870805:  Applicant to unauthorized absence 0730, 5Aug87.

870806:  Applicant from unauthorized absence 0840, 6Aug87 (1 day/surrendered).

870807:  Applicant to unauthorized absence 0730, 7Aug87.

 870807:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

870810:  Applicant from unauthorized absence 0815, 10Aug87 (3 days/surrendered).

870828:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

870902:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Reduction to RMSN. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 870911 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 issue 1, the applicant states that his “discharge was inequitable because it was based on one NJP incident in 6 years of service with no other adverse action”. The Board found the applicant implies that a permissive doctrine exists whereby personnel in the military are allowed "one incident". 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 also noted that in addition to the applicant's violation of UCMJ Article 112a, wrongful use of cocaine, the applicant also violated UCMJ Article 86, unauthorized absence, on more than one occasion. The Board will not grant relief on the basis of this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for relief based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received prior to 11 September 2002.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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 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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