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NAVY | DRB | 2001_Navy | ND01-00015
Original file (ND01-00015.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND01-00015

Applicant’s Request
The application for discharge review, received 001004, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329. 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. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record warrants discharge under honorable conditions.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from the applicant dated September 25, 2000
Copy of DD Form 214
Six pages from applicant's service record (2 copies)
Letter of Appreciation from Vietnam Veterans of America, Chapter 595 dated November 10, 2000
Copy of applicant's resume
Copy of certificate for credentials of ministry dated October 29, 1998
Copy of certificate of ordination dated October 30, 2000
Letter from applicant dated October 26, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 860620               Date of Discharge: 870127

 Length of Service (years, months, days):

         Active: 00 07 03
         Inactive: 00 00 05

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 74

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: 3.00 (1)                OTA: 2.80

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

 Chronological Listing of Significant Service Events :

861105:  NAVDRUGLAB, Great Lakes, IL reports applicant's urine sample received 861031 tested positive for cocaine.
861203:  NJP for violation of UCMJ, Article 80: Attempt to smoke a controlled substance, to wit: marijuana on 15Oct86, violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine as confirmed in urinalysis test by NAVDRUGLAB Great Lakes, IL between 28Sep86 and 28Oct86.
         Award: Forfeiture of $319 per month for 2 months, restriction and extra duty for 30 days. Restriction suspended for 6 months. No indication of appeal in the record.
861215:  Drug and Alcohol Abuse Report: Cocaine abuse, October 1986. Consent search. Medical officer found applicant not dependent and recommended separate from service. Commanding officer recommended separate from service. Comments: SNM is 21 years old with 5 months TIS. This incident NJP Art 80: Attempt to smoke a controlled substance, positive urinalysis for cocaine. Awarded: Forfeiture of $319.00 pay per month for 2 months, 30 days extra duty (30 days restriction suspended for 6 months). No priors. Medically diagnosed as not dependent. Has no potential for future naval service. Processing for ADSEP.
861205:  Medical evaluation for drug abuse found the applicant not to be a drug dependent.

861219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your nonjudicial punishment fro attempting to smoke marijuana and for the wrongful use of cocaine.
861219:          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.
870109:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

870114:  Chief of Naval Technical Training 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 870127 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 tested positive on a command urinalysis for cocaine, then made a statement about his marijuana usage, and was therefore found guilty at CO’s NJP for attempting to smoke a controlled substance (marijuana) and wrongful use of a controlled substance (cocaine) during his abbreviated 7 months in the Navy.

 In response to the applicant’s issue 1, the Board found that the applicant’s service was accurately characterized as having been under other than honorable conditions. The applicant is responsible for his actions and must accept the consequences of these actions. No relief will be granted based on this issue.

In the applicant’s issue 2, 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 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. Navy Military Personnel Manual, (NAVPERS 15560), Change 4/85, effective
06 Oct 86 until 14 Dec 86, 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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