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NAVY | DRB | 2000_Navy | ND00-00315
Original file (ND00-00315.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND00-00315

Applicant’s Request
The application for discharge review, received 000105, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to involuntary convenience of the government. 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 000928. 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 isolated incident in two years and seven months of honorable duty. (Applicant explains see attachment).

2. My discharge was inequitable because the process of my administrative discharge was improper (Applicant explains see attachment).

3. Post service (Applicant explains see attachment).

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Applicant (2pgs)
Resume (2pgs)
Letter from Applicant dtd 16Sep00
Letter of Reference dtd 2Sep00
Registered Veterinary Technician Professional License
American Red Cross CPR, First Aid, Lifeguard Training certificate
A.A. Degree from the State University of New York dtd May 1993
Animal Technology completion from Washington’s Dept. of Health
Veterinary Technician License dtd 16Sep93
Letter of Reference dtd 18Sep00
Western Washington University Transcripts
         

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 871204               Date of Discharge: 900719

 Length of Service (years, months, days):

         Active: 02 07 16
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 75

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.90 (2)                OTA: 3.40

 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 :

900409:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 900101.
         Award: Forfeiture of $405.00 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.

900416:  Medical evaluation indicates applicant used THC over the Christmas with his brother. Incidental usage-episodic. Admitted on THC waiver findings of that examination indicates: applicant does not require hospitalization, not dependent on drugs or alcohol, not psychologically dependent on drugs or alcohol. Applicant uses drugs and alcohol because it is available and use is considered recreational and can be controlled by the individual. Applicant is not suicidal {EXTRACTED FROM CO'S MESSAGE} .
900419:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your act of illegal or wrongful use or possession of a controlled substance (s) {EXTRACTED FROM CO'S MESSAGE}.
900419:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights {EXTRACTED FROM CO'S MESSAGE}.

900422:  DAAR indicates applicant abused marijuana, as a result of a unit sweep urinalysis, found not dependent by medical officer, recommended for separate via VA Hospital.
900517:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900521:  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 900719 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 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.

 In response to the applicant’s issue 2, the Board found that the applicant was given his proper notification of rights on 900419 and waived those rights. Although the applicant states that he was naïve, and his “perception of the likely outcome of the hearing was not accurate,” the applicant was found guilty of wrongful use of marijuana, which he knew was against Navy regulations. The applicant states that separation processing should not have been initiated until he had formal counseling. The applicant waived his right to counsel. In addition, the applicant feels that he should have been given “the opportunity to prove my commitment to honorable service through my actions or formal counseling.” Although it is admirable that the applicant would want to prove his commitment to honorable service, it was the CO’s prerogative to initiate processing for separation after one or more drug incidents. Discharges for misconduct due to drug abuse are normally under other than honorable conditions. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. No relief will be granted based on 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). At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. The applicant is strongly encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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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