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NAVY | DRB | 2000_Navy | ND00-00973
Original file (ND00-00973.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND00-00973

Applicant’s Request
The application for discharge review, received 000822, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel. The applicant listed DISABLED AMERICAN VETERANS 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 hearing are held in the Washington, DC Area. The Naval Discharge Review Board (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 010209. 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Change of Classification of Discharge from General to Honorable. Maintained very good military records, only had the one incident for using performance enhancing substance for physical rehabilitation of left knee that was injured in special warfare training.

 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
Letter to Senator A___ S___
Letter from Applicant (3pgs)
Response Letter from Senator A___ S_____
Copy of Discharge Information (3pgs)
Copy of Court Memorandum
Copy of Administrative Remarks
Copy of Urinalysis Test Result Letter
Copy of Accelerated Advancement Participation Letter
Copies of Letters of Appreciation (2)
Copy of History of Assignments
Cover Letter from DAV


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     970918 - 970929  COG

 Period of Service Under Review :
Date of Enlistment: 970930               Date of Discharge: 990205

 Length of Service (years, months, days):

         Active: 01 04 06
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 76

 Highest Rate: OS3

 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):

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

981013:  Armstrong Laboratory Urinalysis Report indicates applicant tested positive for Steroids [Extracted from case file].

 981028:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (steroids).
         Award: Forfeiture of $287.00 per month for 1 month, restriction and extra duty for 14 days, reduction to E-3. No indication of appeal in the record.

981204:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to drug abuse (use) [Extracted from case file].
981204:          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 submit a written statement for consideration by the Separation Authority and the right to obtain copies of the documents used to support the basis for the separation [Extracted from case file].
981214:  Officer in Charge recommended discharge general under honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments: OSSN K____ is recommended for a General discharge. He was involved in a investigation when he and some friends went to Lorado and Del Rio near the Mexican border to visit and purchase some souveniors. When they crossed the border S____ Y_____ purchased steroids which he asked OSSN K_____ to hold for him while crossing the border. OSSN K____ refused to do this and Y_____ was caught with the steroids in his possession. The Office of Special Investigation took over the case and during the investigation OSSN K_____ admitted using steroids and gave a consensual urinalysis. OSSN K_____ violated the Navy's Zero Tolerance standard for drug abuse on 13 Oct 98 when he tested positive for steroids. Because of his disregard for military rules, regulations, and the Navy's Drug Policy he should be discharged immediately. [Extracted from case file]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990205 general under 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 Board found that the applicant knowingly and illegally used steroids, which was a controlled substance and considered illegal by the US Navy. The fact that the applicant used the illegal substance for “physical rehabilitation of left knee” is irrelevant. 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 based on post-service conduct. At this time, the applicant has not provided ample 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 18, effective 12 Dec 97 to 19 May 99, 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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