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NAVY | DRB | 2000_Navy | ND00-00646
Original file (ND00-00646.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND00-00646

Applicant’s Request
The application for discharge review, received 000425, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to 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 001102. 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I would like to request an upgrade in my separation from the Navy to read General (Under Honorable Conditions). I am asking that my reason for separation be changed to read "Convenience of the Government". I was separated for testing positive on a random drug test. I fully understand Navy policy in this matter however, I only had one occurrence. I realize I made a mistake but I also feel that I was "railroaded" out of the service based on the attitude of the separation board. Although I was in the Navy for about two years, up to the time I had the drug test, my military records were unblemished. I have also provided copy of my last three evaluations that confirms this statement. Although it would be hard to convince anyone that my discharge should be upgraded to an Honorable Discharge, I believe based on my record and the one time occurrence that I would deserve a General Discharge under Honorable conditions. I feel what I am requesting is not asking too much. Obtaining gainful employment as the DD 214 is written now has become extremely hard. Your positive viewpoint and approval would be greatly appreciated. Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copies of Evaluation Report & Counseling Record (3)
Copies of Suggested Questionnaire (4) (3 pgs each)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     971029 - 971123  COG

 Period of Service Under Review :
Date of Enlistment: 971124               Date of Discharge: 990702

 Length of Service (years, months, days):

         Active: 01 07 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 47

 Highest Rate: HA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.66 (3)    Behavior: 1.66 (3)                OTA: 3.05

 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, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

980723:  NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for cocaine.
980803:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: cocaine.
         Award: Forfeiture of $463.00 per month for 2 months and restriction and extra duty for 45 days. No indication of appeal in the record.
                   [Extracted from enlisted evaluation].

 981112:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
981112:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990610:  The Administrative Discharge Board recommended that the member be discharged by reason of misconduct due to drug abuse with a characterization under other than honorable conditions.
xxxxxx:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

990610:  SJA review determined the case sufficient in law and fact, concurred with the recommendations that HR P___ be discharged by reason of misconduct due to drug abuse with an under other than honorable conditions characterization of service.

990614:  GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990702 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 and the reason for 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 addition, the applicant states that he was “railroaded out of the service” but does not provide any documentation to substantiate this allegation. The applicant admits to wrongfully using cocaine and the Board finds that he was processed properly for drug abuse. No relief granted

 The applicant also requested that the reason for the discharge be changed to “convenience of the government.” Since the Board did find that the applicant was properly discharged for drug abuse, no other narrative reason for discharge would be appropriate other than drug abuse. 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). 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 within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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