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NAVY | DRB | 2000_Navy | ND00-00664
Original file (ND00-00664.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND00-00664

Applicant’s Request
The application for discharge review, received 000424, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a Traveling Panel closest to DeBary, Florida. The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201. 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. That consideration be given to my record as a sailor prior to my last discharge. My record was excellent until that time is it not reasonable to assume I should have been counseled since this behavior was very much out of character with my career prior to that time.

2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on January 12, 2001 and the following comments are hereby submitted.

 Background :      Applicant initially enlisted in the United States Navy May 22, 1986 for a period of 4 years. He reenlisted on January 22, 1990 under the Navy GUARD III Program for 6 years for orders to Guantanamo Bay, Cuba. Enlisted Personnel Action Document (EPAD) clearly shows the reenlistment incentive and the fact that the orders were issued for a "with dependents' tour. On October 11, 1990 the applicant received non-judicial punishment (NJP) for wrongful use of cocaine. He received 30 days restriction and extra duty, forfeiture of $400 for 2 months and reduction in rate to E4. An Admin Board was convened and on November 5, 1990 and recommended separation with an other than honorable discharge. He was separated on December 19, 1990 with an other than honorable discharge due to misconduct - drug abuse (use).

 Analysis : T he applicant attributes his problems and subsequent discharge with the Navy's failure to fulfill his reenlistment incentive for assignment to Guantanamo Bay with his dependents. The record clearly shows orders were issued for his assignment to Cuba with his dependents. An overseas screening was conducted after his reenlist and his command deemed his dependents fit for overseas assignment. The record contains an overseas screening evaluation dated June 29, 1990. This screening clearly shows his wife had a history of bi-polar disorder at times of Increased stress. This clearly should have disqualified her for assignment to an isolated duty station such as Guantanamo Bay. This is evidenced by NAVHOSP GUANTANAMO BAY CU message 021725Z JUL90.
All testimony at the Admin Board was in favor of keeping the applicant in the Navy. He was a good worker and supervisors indicated they would take him back into their Division. Navy regulations concerning one time drug use provides for the retention of those members who show good potential for further service.

Since leaving the Navy, the applicant has pursued a career in nursing. A review of references submitted with his application reveals a compassionate man who is sensitive to the needs of his patients. He has continued his education in his pursuit of his desire to help other people.

 Contentions :     Whi le the applicant's contention of an unfulfilled GUARD III assignment is not an excuse for his drug use, it is certainly a mitigating circumstance that could have prevented his entire situation. At the time it was a common practice to screen dependents PRIOR to issuing orders overseas and many times prior to entering into a GUARD III assignment with an individual. How could a dependent who has a history of a mental condition, especially under stress, be recommended for accompaniment with a sponsor overseas. The applicant's spouse's condition was clearly indicated on the Report of Suitability for Overseas Assignment. Orders should have been renegotiated and the member and his dependents placed in the Exemption Family member Program (EFM) for consideration of future assignments.

The applicant had recently reenlisted for 6 years after having completed 3 years and 7 months of honorable service, of which over 3 years was spent on arduous sea duty. This is not indicative of an individual with a drug problem. All testimony at the Admin Board supported retaining this applicant in the Navy.

The applicant has gone well beyond his unfortunate discharge. He has dedicated his life to helping others, those sick or too ill to care for themselves. He has also assisted in instilling in his peers the need for compassion and sensitivity.

We refer this case to the Board for their careful and compassionate consideration and request the applicant granted relief.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Statement from applicant dated March 13, 2000
Copy of Letter of Commendation for September 1987 to March 1988
Copy of Letter of Appreciation dated June 10, 1987
Copy of enlisted personnel action document dated August 28, 1989
Copy of report of suitability for overseas assignment dated June 29, 1990 (4 pages)
Copy of photography
Copy of Re-up documents
Copy of Chapter Eleven (reenlistment incentives) (2 of 5 pages)
Copy of SS-4 Application for Employer Identification Number dated December 16, 1998
Copy of member certificate of chamber of commerce for 1998-99
Copy of letter of recommendation dated October 14, 1994
Copy of letter of appreciation undated
Job/character reference dated June 13, 1994
Copies of applicant reference forms dated January 2, 1994, February 7, 1994
Copy of message re: overseas screening dated July 2, 1990
Copy of certificate for completion of 90-hour Nurse Aide course dated February 2, 1994
Copy of certificate from New Jersey State Department of Health issued March 5, 1994
Copy of diploma in practical nursing dated February 15, 1996
Copy of student final record
Copy of certificate of achievement undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        860522 - 900121  HON
         Inactive: USNR (DEP)     860508 - 860521  COG

 Period of Service Under Review :
Date of Enlistment: 900122               Date of Discharge: 901219

 Length of Service (years, months, days):

         Active: 00 10 28
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 12                        AFQT: 66

 Highest Rate: OS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.60 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, USCGOPS, SSR

 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 :

900924:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample received 900917, tested positive for cocaine.
901001:  Drug and Alcohol Abuse Report: Cocaine abuse. Abuse denied. Random urinalysis 900917. CAAC recommended separate not via VA hospital. Physician found not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: OS2 (applicant) continues to deny substance use. Specimen has been retested and found positive for cocaine. CAAC and Medical Officer see no rehab potential. ADSEP Board recommends separation under other than honorable conditions IAW NAVOP 63/90. Report delayed to include ADSEP board recommendation.

901004:  DAPA evaluation for drug abuse found the applicant not drug dependent and recommended administrative separation.

901010:  NAVDRUGLAB, Norfolk, VA reports retest of applicant's urine sample received 900917, retested positive for cocaine.
901010:  CAAC evaluation for drug abuse found the applicant not drug dependent.

901011:  NJP for violation of UCMJ, Article 112A: Wrongfully use cocaine, a schedule II controlled substance on or about 13Sep90.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 30 days, reduction to OS3. No indication of appeal in the record.
901022:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment on 11 October 1990.
901022:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
901105:  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.

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

901212:  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 901219 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).

The applicant states in issue 1 that “ consideration be given to my record as a sailor prior to my last discharge. My record was excellent(sic) until that time is it not reasonable to assume I should have been counseled since this behavior was very much out of character with my career prior to that time.” Unfortunately, the characterization for a servicemember’s enlistment is based on the events during that enlistment alone. The applicant’s decision to use cocaine outweigh the positive aspects of the applicant’s service and the Board therefore finds that the applicant is deserving of a characterization under other than honorable conditions. In addition, there is no requirement to counsel an individual for his drug useage. The applicant admits he made a conscious decision to use an illegal controlled substance so he could be discharged from the Naval Service. The applicant was properly afforded all his rights and due process and discharged for his misconduct due to drug abuse. Relief is denied based on this issue.
In the applicant’s issue 2, evidence is presented by the applicant concerning his Guard III orders and the fact that his wife did not screen for this isolated overseas duty, after the applicant had already transferred to Guantanamo Bay. The Board found the applicant was then transferred to CONUS. It was at this time that the applicant tested positive for cocaine. The applicant is responsible for his actions and must accept the consequences of these 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). 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 sufficient 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. 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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