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NAVY | DRB | 2000_Navy | ND00-00122
Original file (ND00-00122.rtf) Auto-classification: Denied


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

ex-EWSA, USN
Docket No. ND00-00122

Applicant’s Request
The application for discharge review, received 991102, 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 000803. 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 undesirable discharge was inequitable because it was based on one isolated incident in 14 months 29 days of service with no other adverse action.

2. My undesirable discharge limits my ability to contribute to the community.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated October 6, 1999
Character reference dated September 23, 1999
Character reference dated September 29, 1999
Character reference dated September 19, 1999
Letter from applicant dated October 25, 1999
Letter from applicant dated November 30, 1999
Nineteen pages from applicant's service record
Copy of DD Form 214
Criminal record check dated November 30, 1999
Certificate of completion dated April 11, 1986
Character/job reference dated April 15, 1992
Character/job reference undated
Certificate of completion dated September 1, 1989
Certificate of attendance dated April 11, 1988
Certificate of completion dated September 26, 1990

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     841113 - 850924  COG

 Period of Service Under Review :
Date of Enlistment: 850925               Date of Discharge: 861223

 Length of Service (years, months, days):

         Active: 01 02 29
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 93

 Highest Rate: EWSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 3.20 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

 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 :

861017:  CAAC evaluation for drug abuse found the applicant to be non-dependent on drugs or alcohol. [Extracted from CO's message dated 10Nov86.]
861024:  NJP for violation of UCMJ, Article 112A: Wrongfully use cocaine
         Award: Forfeiture of $358 per month for 2 months, restriction and extra duty for 45 days, reduction to EWSA. No indication of appeal in the record.
861028:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by one incident of drug abuse at one CO's NJP.
861028:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
861106:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly Sep85 - Sep86, ashore off duty. Urinalysis Sep86. CAAC found applicant not dependent and recommended Level I. Separate SAC/NASAP/NDSAP/ CAAC evaluation found applicant not dependent and recommended separation. Commanding officer recommended separation. Comments: EWSA (applicant) was referred to the DAPA after being identified as a user of cocaine by NAVDRUGLAB Great Lakes, 300856Z Sep 86. He was referred to CAAC, where he was evaluated as non-dependent of drugs and/or alcohol and was recommended fore Level I education only. At CO's NJP for this incident he was awarded forfeiture of $358.00 pay per month for two months, placed on 45 days restriction and extra duty, and was RIR from E-2 to E-1. EWSR (applicant) is 18 years old and has one year active service. Because of this incident and service record documentation of pre-service use of THC, EWSR (applicant) has been adjudged as having NO potential for further naval service and is being processed for administrative separation.
861110:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

861213:  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 861223 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 implies that a permissive doctrine exists whereby one in the military is allowed an "isolated 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 will not grant relief on the basis of this issue.

In response to applicant’s issue 2, the Board has no obligation to change the applicant’s discharge in order to allow him to contribute to the community. 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy. However, the documentation submitted is not sufficient enough to mitigate the applicant’s offense. Therefore, relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle. Verifiable documentation of such a lifestyle is essential. The applicant is encouraged to continue his community service, remain sober, and apply for a personal appearance hearing prior to 23 December, 2001.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 4/85, effective
06 Oct 86 until 14 Dec 86, 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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