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NAVY | DRB | 2000_Navy | ND00-01023
Original file (ND00-01023.rtf) Auto-classification: Denied


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

ex-SKSN, USN
Docket No. ND00-01023

Applicant’s Request
The application for discharge review, received 000831, 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 separation from service. 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 four to one that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because it was based on one isolated incident in 7 1/2 years of service with no other adverse action.

2. I did wave my right to an administrative board, but I was under a lot of stress and I was depressed. I was more focused on getting out and getting my life together that what discharge I was receiving. I now want the chance to receive a better discharge.

3. A positive urinalysis for marijuana was the only adverse incident during my entire time in the navy. As my record will show, I was an outstanding sailor and leader prior to the positive urinalysis. I reached the rank of E-5, qualified surface warfare, elected sailor of the quarter, received two good conduct awards, received a navy achievement medal, and I had outstanding evaluations. There are also many other awards and accolades that I had received during my time in service.

4. I'm requesting a general under honorable conditions because I feel that discharge will be appropriate to my case.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference Letters (2)
Copy of Associates Degree in Liberal Arts
Copy of Associates Degree in Behavioral Sciences
Copy of Certificate of Academic Achievement Deans Honor List
Copy of Transcript from San Diego City College
Copy of Transcript from San Diego State University
Copies of DD Form 214 (2)
Copies of Enlisted Performance Evaluation Reports (4)
Copies of Honorable Discharge Certificate (2)
Copy of Certificate of Reenlistment
Copy of Navy and Marine Corps Achievement Medal Certificate
Copy of Commander's Letter for Achievement Medal Award
Copy of Enlisted Surface Warfare Specialist Certificate
Copy of Certificate of Commendation
Copy of USS MCKEE (AS-41) Hard Charger Award
Copies of Letter of Appreciation (2)
Copy of Military Women of Achievement Certificate
Copies of Certificate of Training (5)
Copy of Admittance Letter to San Diego State University
Copy of California State University Recommendation Form
Copy of California State University Nomination Form
Copy of Evaluation Report & Counseling Record
Copies of Enlisted Performance Evaluation Reports (3)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        900206 - 940203  HON
                  USN                       940206 - 970126  HON
         Inactive: USNR (DEP)     890428 - 900205  COG

 Period of Service Under Review :
Date of Enlistment: 970127               Date of Discharge: 970718

 Length of Service (years, months, days):

         Active: 00 05 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 2

 Education Level: 12                        AFQT: 59

 Highest Rate: SK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: Sharpshooter M16A-1 Ribbon, OSR, Marksman .45 Caliber Pistol Ribbon, MUC, GCA (2), HSM, NAM, NDSM, ESWS

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 3630620.

 Chronological Listing of Significant Service Events :

970127:  Reenlisted at TPU, San Diego, CA for 2 years.

 970212:  Command, DAPA indicated applicant had positive urinalysis sample for THC, no treatment needed. [Extracted from medical record].

970613:  Special Court Martial
         Charge I: violation of the UCMJ, Article 112a: Wrongful use of marijuana.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 15 days, reduction to E-3.
         CA 970627: Reduction to E-3.
970617:  Confinement Physical [Extracted from medical record]

 970627:  Applicant notified of intended recommendation for discharge other than honorable conditions by reason of misconduct due to drug abuse.
970627:          Applicant advised of her 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.
970630:  Commanding officer recommended discharge other than honorable conditions by reason of misconduct due to drug abuse (use).

970703:  BUPERS 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 970718 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).

In response to applicant’s issues 1 and 3, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". 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 response to applicant’s issue 2 and 4, the NDRB understands the applicant’s regret for not electing an administrative board. Unfortunately, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. However, outstanding post-service conduct, 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts she has begun to make in attempting to recoup her reputation which has been sullied by her misconduct in the Navy. NDRB experience has shown that applicants with less than five years sobriety usually have not had sufficient opportunity to demonstrate continuing, positive contributions to society. Therefore, relief will not be granted at this time. The applicant is reminded that she remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time she maintains an alcohol and drug free lifestyle. Verifiable documentation of such a lifestyle is essential. The applicant is encouraged to continue to increase her post-service accomplishments and apply for a personal appearance hearing prior to 18 July 2012.



Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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