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NAVY | DRB | 2001_Navy | ND01-00062
Original file (ND01-00062.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND01-00062

Applicant’s Request
The application for discharge review, received 001017, 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 did not list any representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010406. 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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Statement from applicant dated August 22, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     820628 - 820802  COG

 Period of Service Under Review :
Date of Enlistment: 820803               Date of Discharge: 851023

 Length of Service (years, months, days):

         Active: 03 02 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12 GED           AFQT: 66

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.25 (4)    Behavior: 3.28 (5)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 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 :

820628:  Applicant briefed Navy's policy concerning drug urinalysis testing.

820803:  Applicant signed USN Drug Abuse Statement of Understanding.

820823:  Applicant granted waiver of pre-service drug abuse.
 841101:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana during the month of October 1984.
         Award: Forfeiture of $330 per month for 2 months, restriction for 30 days, reduction to MMFA. No indication of appeal in the record.
841102:  Retention Warning: Advised of deficiency (Drug abuser (as identified by random urinalysis).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

841102:  Substance Abuse Report: Marijuana abuse, less than monthly Sep84-Oct84, ashore off duty. Inspection/random urinalysis October 1984. SAC found applicant not dependent and recommended Level I. Commanding officer recommended retention and refer to NASAP.NDSAP, Level I. Comments: Mbr has potential for future naval service. No prior NJP, civil or medical history. Mbr has pre-service waiver. Statement of understanding in S/R, NJP held 1Nov84. Mbr awarded reduction in rate to E-2, restriction for 30 days, and forfeiture of $330.00 for two months. Mbr transferred to COMSUBGRU TWO pending disqualification from Submarine.

850916:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 112A: Wrongfully use cocaine.
         Award: Forfeiture of $347 per month for 2 months, restriction for 60 days, reduction to MMFA. No indication of appeal in the record.
850917:  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 NJP of 16 September 1985 and NAVDRUGLAB Norfolk, VA message 060949Z Sep 85.
850917:          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.
850928:  Substance Abuse Report: Cocaine abuse, 1 to 3 times per month, ashore off duty. SAC found applicant not dependent. Inspection/random urinalysis August 27, 1985. Commanding officer recommended separate. Comments: Positive results (cocaine) received from USS FULTON (tested 27Aug85, accession NO's 840291 thru 842175). MBR identified THC positive Nov84 by random urinalysis aboard USS ANDREW JACKSON (SSBN 619), disqualified from SUB duty. NJP reduction E3 to E2, fined, restricted. Referred to NASAP for mandatory attendance, completed course. Assigned after care program of NA & AA meeting 3 per week and weekly urinalysis for 1 month. MBR reported aboard RESOLUTE 05Sep85. NJP 16Sep85, process for separation under MILPERS ART 3630620.
851009:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

851015:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly August 1985, ashore off duty. Inspection/random urinalysis August 1985. Comments: Member transferred 30Aug85 to AFDM 10 Resolute Norfolk, VA. Results forwarded to new command. No disciplinary action taken at this command. Message received 6Sep85. Positive for cocaine random sampling NAVDRUGLAB Norfolk, VA 060949Z

851015:  CNMPC 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 851023 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).

Issue 1. The applicant did not submit any issues on DD Form 293 but he did submit a personal letter. In the applicant’s letter, he states, he has tried to be a model citizen since his discharge and has fully supported the laws and armed forces in every way possible. He respectfully request that the NDRB favorably consider his request for an upgrade of his discharge. 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 did not provide any of these documents.
Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/84, effective
17 Sep 84 until 15 Dec 85, 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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