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NAVY | DRB | 2000_Navy | ND00-00916
Original file (ND00-00916.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND00-00916

Applicant’s Request
The application for discharge review, received 000718, requested that the characterization of service on the discharge be changed to Honorable or General/under Honorable conditions. The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. Subsequent to the application the applicant obtained representation by the American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 010502. 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 HONORABLE CONDITIONS (GENERAL)/MISCONDUCT - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) As evidenced by his supporting documentation, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174.C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated May 31, 2000 (2 copies)
Copy of DD Form 214
Character/job reference dated March 30, 1995 (2 copies)
Character/job reference dated August 14, 1996 (2 copies)
Copy of certificate of high school program dated June 1988 (2 copies)
Copy of work history (2 copies)
Certificate from National Strength Professionals Association for certified instructor (2 copies)
Character/job reference dated May 5, 2000 (2 copies)
Character reference May 24, 2000 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880115 - 880821  COG

 Period of Service Under Review :
Date of Enlistment: 880822               Date of Discharge: 900112

 Length of Service (years, months, days):

         Active: 01 04 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 43

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 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 HONORABLE CONDITIONS (GENERAL)/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880822   Applicant ordered to active duty for 36 months under the Active Marine Program.

880920:  Drug and Alcohol Abuse Report: Marijuana abuse, service directed urinalysis 880822. Commanding officer recommended retention and Level I treatment including NADSAP. Comments: Member has potential for naval service. Positive entry level urinalysis for THC. Issued page 13. Will undergo mandatory urinalysis once a month during pre-accession training IAW OPNAVINST 5350.4A.

880927:  Applicant identified through urinalysis testing to be a drug abuser and placed on drug urinalysis surveillance program..

881206:  NJP for violation of UCMJ, Article 116: Breach of peace by engaging in a fist fight on 1540, 30Nov88, violation of UCMJ Article 128: Commit assault 1540, 30Nov88, violation of UCMJ Article 86: Failed to go to appointed place of duty on 1230, 5Dec88.
         Award: Forfeiture of $145 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
881206:  Retention Warning from Service School Command, Naval Training Center, San Diego, CA: Advised of deficiency (Article 116 and 128 and 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890512:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Go from appointed place of duty, galley, at 1600, 25Apr89, (2) Go from appointed place of duty, galley, at 1100, 26Apr89.
         Award: Extra duty for 30 days. No indication of appeal in the record.
890721:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 5Jul89.
         Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
890809:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. Recommended for Level I with attendance at AA meetings.

890827:  USS TARAWA (LHA 1) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by nonjudicial punishments of 6 December 1988, 12 May 1989 and 21 July 1989; misconduct due to drug abuse as evidenced by nonjudicial punishment of 21 July 1989 for wrongful use of marijuana and by misconduct due to commission of a serious offense as evidenced by wrongful use of marijuana (NJP of 21 July 1989).
890920:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
 890922:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, drug abuse, and commission of a serious offense, that the misconduct does not warranted separation, and recommended retention.

891009:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, drug abuse, and commission of a serious offense. Commanding officer’s comments (verbatim): SR (applicant) was processed for administrative separation for misconduct - pattern of misconduct, drug abuse and commission of a serious offense. Upon entry on active duty, SR (applicant) was identified as a drug abuser through accession urinalysis testing. He signed a page 13 counseling/warning statement on 26 September 1988, informing him that a second drug abuse incident would result in immediate processing for separation. SR (applicant) received his first nonjudicial punishment while at MS "A" School. As a result of his nonjudicial punishment, SR (applicant) again received nonjudicial punishment, SR (applicant) was disenrolled from school. SR (applicant) again received nonjudicial punishment in May 1989. As a result of a random urinalysis conducted 5 July 1989, SR (applicant's) urine sample was reported positive for marijuana and he received nonjudicial punishment for wrongful use of marijuana on 21 July 1989. A second drug abuse incident in less than a year. SR (applicant) was given a drug dependency evaluation by LT F_, MC, USN, on 9 August 1989 and was determined not to be drug dependent. SR (applicant) was informed of administrative separation processing on 27 August 1989 and on the same date completed a Statement of Awareness indicating that he did not desire to consult with counsel and invoke his right to an administrative board. His request to withdraw his Statement of Awareness completed on 27 August 1989 and requested to withdraw his Statement of Awareness completed 27 August 1989 and requested to consult with counsel and invoke his right to an administrative board. His request was approved and SR (applicant) consulted with counsel upon the ship's arrival in Subic Bay. The Administrative Board was held on board USS TARAWA on 22 September 1989. I concur in the findings of the Administrative Board. I firmly disagree with the recommendation of the Administrative Board. In accordance with reference (d), I find that by his two drug incidents in less than a year SR (applicant) does not exhibit any potential for continued naval service. I strongly recommend SR (applicant) be immediately separated from the U. S. Navy.

891130:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1700, 16Nov89 to 0900, 17Nov89, violation of UCMJ Article 92: Fail to obey lawful general regulation, Article 510.5, SORM by wrongfully departing ship without AFID.
         Award: Forfeiture of $200 per month for 1 month. No indication of appeal in the record.
891208:  Chief of Naval Personal forwarded recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs) that applicant be discharged under honorable conditions (general) by reason of misconduct due to pattern of misconduct, drug abuse and commission of a serious offense.

891220:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed the applicant discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct, drug abuse, and commission of a serious offense.

900102:  CNMPC directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

 910618:  NDRB documentary record review Docket Number ND90-00968 conducted. Determination: discharge proper and equitable; relief not warranted.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900112 under honorable conditions (general) for misconduct due to a pattern of misconduct (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).

Issue 1. The applicant states that his post-service conduct was sufficiently creditable to warrant the Board’s clemency relief. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant stated he didn’t have time for volunteer work because of his job, however, he did have time to play basketball, go to movies and concerts and to read. The applicant provided a personal letter, character reference letters, his work history, DD 214 and certificates for completing a fitness course. The Board determined these documents were insufficient to warrant a discharge upgrade. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 7, effective 25 May 89 until 20 Aug 89), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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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