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NAVY | DRB | 2000_Navy | ND00-01020
Original file (ND00-01020.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND00-01020

Applicant’s Request
The application for discharge review, received 000831, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government RE-1 Reenlistment Code. 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 010215. 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 reason for discharge and character shall not change. The discharge shall remain: OTHER THAN HONORABLE CONDITIONS/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. At my NJP I was awarded reduction in rank and forfeiture of pay as punishment for the violation. I was told that the discharge was an administrative necessity and therefore no punitive, which in not the case.

2. My average conduct and proficiency rating/behavior and proficiency marks prior to and up to the violation were outstanding, averaging 4.0.

3. During my 17 years of honorable service to my country, I received numerous awards and decorations. To include good conduct awards, unit citation, letters of appreciation, and campaign service decorations.

4. I volunteer to deploy t the Persian Gulf during Desert Shield/Desert Storm and received letters of appreciation for outstanding service.

5. My record of promotion indicates that I was an above average service member.

6. My naval career will always be held in high esteem by me, encompassing pride, honor and a sense of fulfilled patriotic duty to my country.

7. I was so close to finishing my career that it was unfair or insensitive to give me a bad discharge without even considering alternative measures.

8. Over my 18 year career I had received 4 previous honorable discharges.

9. Initially, and for some time after my discharge, I felt little hope or need of overcoming my circumstances. I was devastated. I have since overcome those feeling and now, with the God, the assurance of my family and alcoholic/narcotics anonymous, I am on my way to a happy and productive life.

10. Although marital and family discord cannot be considered solely the blame for my substance abuse, I had been aware of or sought other avenues to handle the problems, a different outcome could have been possible.

11. I believe that the punishment that I received was to severe in light of the fact that in todays medical/psychological community addictions is considered a treatable disease.

12. Prior to my NJP I was told that I might be given a reassignment but this was later denied.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant
Copy of DD Form 214
Copy of Enlisted Performance Evaluation Report (4pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        750507 - 820715  HON
                  USN                       820716 - 890309  HON
                  USN                       890310 - 910131  HON
         Inactive: USNR (DEP)     750315 - 750506  COG

 Period of Service Under Review :
Date of Enlistment: 910201               Date of Discharge: 930220

 Length of Service (years, months, days):

         Active: 02 00 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: ?

 Highest Rate: HM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (3)    Behavior: 3.60 (3)                OTA: 3.73

 Military Decorations: None

 Unit/Campaign/Service Awards: Expert Pistol Ribbon, Expert Rifle Ribbon, OSR (3 RD ), KLM, SASM, GCM (2 ND ), NUC, MUC, FMFSM, SSDR (2 ND )

 Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

910201:  Reenlisted onboard USS VANCOUVER [LPD-2] for 4 years.

 921106:  NAVDRUGLAB NORFOLK VA urinalysis report indicates applicant tested positive for cocaine.
921116:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine) on or about 921019.
         Award: Forfeiture of $754.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5. No indication of appeal in the record.

921123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer's Non-Judicial Punishment of 921120.
921123:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921124:  NAVDRUGLAB NORFOLK VA urinalysis report indicates applicant tested positive for cocaine.

921129:  Arrested by Virginia Beach Police Department at his place of residence for domestic dispute with his wife, individual was intoxicated and disorderly upon apprehension, MCC N____ stated that the individual destroyed the furniture at wife's home and there will be a peace bond against individual in the morning. Individual was returned to his room in BEQ 105 by security personnel.

921203:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, violation of UCMJ Article 134: Drunk and disorderly conduct and breaking restrictions.
         Award: Forfeiture of 1/2 pay per month for 2 months (suspended for 6 months), restriction to Naval Hospital for 45 days, extra duty for 45 days, reduction to E-4 (suspended for 6 months). No indication of appeal in the record.
921207:  Discharge Diagnosis:
 AXIS I: Adjustment Disorder with depressed mood (resolving) Cocaine dependence and Alcohol Dependence
921215:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse (second incident), as evidenced by Commanding Officer's Non-Judicial Punishment of 921120.

921217:          Applicant advised of his rights and having elected not 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.
921224:  Commanding officer recommended discharge other than honorable conditions by reason of misconduct due to drug abuse (use).

930112:  BUPERS directed the applicant's discharge 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 930220 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’s first issue states: “Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. At my NJP I was awarded reduction in rank and forfeiture of pay as punishment for the violation. I was told that the discharge was an administrative necessity and therefore non punitive, which in not the case.” The Board found no injustice in the discharge. Contrary to the applicant’s issue, the record clearly shows that after his second NJP for wrongful use of controlled substance, he was properly notified of recommended discharge of other than honorable. The discharge characterization was, in fact, non punitive. Relief is not warranted.

The applicant’s second issue states: “My average conduct and proficiency rating/behavior and proficiency marks prior to and up to the violation were outstanding, averaging 4.0.” The applicant’s misconduct, two separate incidents of wrongful use of controlled substances, was the basis for separation. The applicant’s misconduct outweighed his otherwise credible service. Relief is not warranted.

The applicant’s issues three through eight state reasons why his length of service, patriotism, esteem by others, service in the Persian Gulf, and previous honorable discharges warrant an upgrade. The Board found the applicant’s otherwise creditable service was marred by his drug abuse, and an other than honorable discharge accurately characterized his last enlistment. Relief is not warranted.


The applicant’s ninth issue states: “Initially, and for some time after my discharge, I felt little hope or need of overcoming my circumstances. I was devastated. I have since overcome those feeling and now, with the God, the assurance of my family and alcoholic/narcotics anonymous, I am on my way to a happy and productive life.” The applicant provided no documentation of his sobriety or drug free lifestyle such as drug testing or documentation of attendance at narcotics anonymous or alcoholics anynomys to support his issue. Relief is dened.

The applicant’s tenth issue states: “Although marital and family discord cannot be considered solely the blame for my substance abuse, I had been aware of or sought other avenues to handle the problems, a different outcome could have been possible.” The NDRB found this issue based on mitigating circumstances while in service and post service (without documentation) and found relief is not warranted.

The applicant’s eleventh issue states: “I believe that the punishment that I received was to severe in light of the fact that in today’s medical/psychological community addictions is considered a treatable disease.” The Board found the discharge awarded for drug abuse proper and equitable. Relief is not warranted.

The applicant’s twelfth issue states: “Prior to my NJP I was told that I might be given a reassignment but this was later denied.” There is no evidence in the record to support this issue. Relief is not warranted.

 Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, is therefore, denied.

The applicant requested the reason for discharge be changed to “Convenience of the Government.” The Board found no other reason for separation would be appropriate. Clearly the applicant was discharged for his drug abuse- use. No other reason for discharge would be appropriate. Relief is denied.


 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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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