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NAVY | DRB | 2000_Navy | ND00-00373
Original file (ND00-00373.rtf) Auto-classification: Denied


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

ex-STG3, USN
Docket No. ND00-00373

Applicant’s Request
The application for discharge review, received 000128, 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 010313. 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. I would like to state to the review board that although the incident involved happened; it in no way inhibited my ability to function as a member of the United States military. The incident was an isolated one and had nothing to do with the rest of my career in the Navy. My actions were those of a young man who did not under stand the full measure of my responsibility. I was aware that there was a zero tolerance policy in effect as far as use of a controlled substance was concerned. My mistake was not giving it the consideration it deserved. My actions since then have been promising. I no longer use drugs or any drug-related items for recreational purposes only when prescribed by a physician. I regret what my actions have cost me. So I ask that you not let the deeds you must weigh in judgment look too harshly upon me. I am not the same man I was before. Please consider my plea and have the decency to change my earlier discharge.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 from first and second enlistment
Medical records
         

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        750120 - 810119  HON
                  USN                       810120 - 850117  HON
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 850118               Date of Discharge: 870331

 Length of Service (years, months, days):

         Active: 02 02 14
         Inactive: None

 Age at Entry: 36                          Years Contracted: 6

 Education Level: 15                        AFQT: 66

 Highest Rate: STS1(SS)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (4)    Behavior: 2.90 (4)                OTA: 2.85

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (2), NEM

 Days of Unauthorized Absence: 1

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 :

860327:  NJP for violation of UCMJ, Article 111: Driving while under the influence of alcohol on a naval station on 23Mar86.
         Award: Forfeiture of $250 per month for 2 months. No indication of appeal in the record.
860327:  Retention Warning: Advised of deficiency (Excessive alcohol consumption. Driving while under the influence of alcohol.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860405:  Drug and Alcohol Abuse Report: Alcohol abuse, one to three times per week Jun84 - Mar86, ashore off duty. Medical officer and CAAC found applicant dependent and recommended Level III treatment. Commanding officer recommended retention and Level III treatment. Petty Officer (applicant) is a qualified Sonar supervisor with no previous drug/alcohol incidents. He was commended by COMSUBGRU FIVE for performance as Sonar supervisor on a 1984 Artic deployment of USS GURNARD. As a result of this incident petty officer (applicant) was awarded NJP for violation of Article 111 of UCMJ resulting in forfeiture of 250.00 dollars per month for two months. Base driving privileges were revoked by NAVSTA Mare Island. There are no previous disciplinary infractions. Petty Officer (applicant) has potential for future productive service if he successfully completes rehabilitation he is on a supervised anabuse program. An assignment to a Level III program is being requested.

860509:  NAVDRUGLAB, Oakland, CA reports applicant's urine sample received 860424, tested positive for cocaine.

 860518:  NJP for violation of UCMJ, Article 112A: Use of a controlled substance on 21Apr86.
         Award: Forfeiture of $580 per month for 2 months, restriction for 60 days, reduction to STS2. Restriction suspended for 6 months. No indication of appeal in the record. Appealed 860522.

860527:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty. Fitness for duty urinalysis 860421. Medical evaluation not completed. Previously evaluated as alcohol dependent. Recommend separation. Commanding officer recommends separation.

860530:  CAAC evaluation: Applicant found psychologically dependent on alcohol. Recommend ARC treatment as soon as possible.

860602:  Drug/Alcohol Abuse evaluation: Denies use. Was previously put on antabuse for ETOH abuse. Plan: Local counseling, education (NASAP/NDSAP), rehabilitation. Will not give antabuse now in view of personal situation and HTN.

860609:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive random urinalysis for cocaine and misconduct due to commission of a serious offense as evidenced by violation of UCMJ Article 111: drunken or reckless driving on a military installation.
860612:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
860731:  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 and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).
860811:  NAVDRUGLAB, San Diego, CA reports applicant's urine sample received 860801, tested positive for cocaine.

860827:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, cocaine.
         Award: Forfeiture of $581.85 per month for 2 months, restriction for 60 days, reduction to STS2. No indication of appeal in the record.
860924:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive random urinalysis for cocaine and misconduct due to commission of a serious offense as evidenced by violation of UCMJ Article 111: drunken or reckless driving on a military installation.
860925:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty, random urinalysis 31Jul86. Medical officer and CAAC found applicant not dependent and recommends separate not via VA hospital. Commanding officer recommends separation. Comments: Petty Officer (applicant) is not considered to be drug dependent. He previously was determined alcohol dependent (ref C) and while awaiting billet for Level III treatment, command directed urinalysis monitoring detected cocaine abuse (ref d). SNM was pending adsep processing when random urinalysis was taken and detected cocaine abuse.
861007:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
861121:  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 and commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.
861202:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of a serious offense.

870116:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

870205:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0730, 4Feb87 to 0800, 5Feb87 (1 day/surrendered).
         Award: Restriction for 15 days, reduction to STS3. No indication of appeal in the record.
870219:  Drug and Alcohol Abuse Report: Cocaine abuse Aug86 - Feb87, 1 to 3 times per week, ashore off duty. Command directed urinalysis 870205. Medical officer and CAAC evaluation found applicant not dependent and recommends separate via VA hospital. Command officer recommends separation. Fifth incident. Comments: Member has been determined by CO as not dependent on cocaine. STG3 (applicant's) performance has been inadequate and shows no potential for continued service. Member was transferred to the VA hospital on 17Feb87 for treatment and discharge. CO's NJP: 86Mar27 Viol UCMJ Art. 111, DUI, awarded FOP $250 for two months. CO's NJP: 86Aug29 Viol UCMJ Art 112A, wrongful use of a controlled substance (cocaine), awarded RIR to E5, 60 days restriction, one half months pay for two months. CO's NJP 87Feb05 viol UCMJ Art 86, UA awarded RIR to E4, 15 days restriction.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 870331 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 response to the applicant’s issue, the Board found 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 also found that the applicant's age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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. 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 clemency 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 31 March, 2002.




Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective
15 Dec 86 until 14 Jun 87, 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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