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NAVY | DRB | 2001_Navy | ND01-00069
Original file (ND01-00069.rtf) Auto-classification: Denied


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


ex-FA, USN
Docket No. ND01-00069

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 personal appearance hearing before a traveling panel closest to (left blank). The applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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. Under current standards, I would not receive the type of discharge I did.

2. My average conduct and efficiency ratings/behavior and proficiency marks were good /[or pretty good].

 3. I received awards and decorations.
4. I received letters of recommendation.
5. I have been a good citizen since discharge.
6. My ability to serve was impaired by my youth and immaturity.
7. Personal problems impaired my ability to serve.

 8. My use of drugs impaired my ability to serve.
9. My use of alcohol impaired my ability to serve.
10. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the corrective action as requested by the FSM of an upgrade of his Under Other Than Honorable discharge to General, Under Honorable Conditions.
A review of the record reflects that the FSM notes on the issue sheet five reasons as to why he believes his discharge should be upgraded. These reasons are as follows; youth and immaturity impaired his ability to serve, personal problems impaired his ability to serve, also he notes that his service conduct and efficiency ratings were good until the interruption of hivgs personal problem, and that he also received awards decorations and letters of recommendation. Further reflecting that since discharge he has been a good citizen.
The last issue the FSM notes is that under current standards, he would not have received this type of discharge. This may very well be true, in that today service members are provided probation and rehabilitation, to try to correct the problem and make them a productive service member again. But in this case the FSM was not allowed the opportunity, which we believe is an impropriety.
Based on this impropriety and the evidence that the FSM took his rehabilitation into his own hands, completed it and became a productive citizen, that he should be granted the upgrade of his discharge as requested.
Just think, if the Navy had allowed a period of probation and rehabilitation, Mr. (applicant) may have still been today a productive member of the United States Navy. Is it not time to correct this matter? Has not the FSM suffered the effects of this discharge long enough? We believe he has and request a favorable conclusion by the Board.
We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant. Respectfully,

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement in support of claim from applicant dated July 7, 2000 (2 copies)
Statement in support of claim dated July 7, 2000 (2 copies)
 Statement in support of claim dated June 26, 2000 (2 copies)
Statement in support of claim, undated (2 copies)
Statement dated June 19, 1998 (2 copies)
Statement in support of claim dated June 15, 2000 (2 copies)
Statement in support of claim dated June 16, 2000 (2 copies)
Letter of recommendation from Pastor dated June 5, 2000 (2 copies)
Letter from Maynord's residential treatment program dated June 9, 1998 (2 copies)
Completion record for emergency medical technician course dated December 16, 1999 (2 copies)
Copy of certificate of completion date from Maynords dated May 11, 1998 (2 copies)
Copy of two American Red Cross cards (2 copies)
Copy of California Ambulance Driver certificate (2 copies)
Copy of medical examiner's certificate (2 copies)
Copy of commercial driver's license (2 copies)
Copy of Emergency Medical Technician-I card (2 copies)
Copy of letter of appreciation for March to June 1990 (2 copies)
Copy of letter of appreciation dated September 6, 1990 (2 copies)
Nine pages from applicant's service record (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     881223 - 890131  COG
Period of Service Under Review :
Date of Enlistment: 890201               Date of Discharge: 910225

 Length of Service (years, months, days):
         Active: 02 00 25
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 31
Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.90 (2)    Behavior: 2.10 (2)                OTA: 3.20

 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 :

890202:  Applicant briefed on Navy's policy on drug and alcohol abuse.
901221:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Consensual urinalysis 901123. Commanding officer recommended level I treatment and separation.
910108:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

910111:  NJP for violation of UCMJ, Article 112A: Wrongfully used marijuana on 28Nov90, violation of UCMJ, Article 86: Absent from appointed place of duty on 21Dec90 for 2 hours and 17 minutes, violation of UCMJ, Article 92 (2 specs): (1) Failed to obey a lawful order issued by a chief petty officer on 21Dec90, (2) Violated a lawful general regulation, to wit: SECNAVINST 5300.28A, by wrongfully possessing drug paraphernalia, to wit: zig zag rolling paper.
         Award: Forfeiture of $426 per month for 2 months, confinement for 3 days on bread and water, reduction to FA. No indication of appeal in the record.
910123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to misconduct due to commission of a serious offense and misconduct due to drug abuse.
910124:  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.
910128:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).
910201:  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 910225 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 1-9 and his representatives issue (issue 10), the Board found that the Navy’s ‘zero tolerance’ policy is still in effect and the outcome of the applicant’s discharge would be the same. The applicant’s enlisted performance evaluation averages, awards and letters of recommendation do not exculpate the applicant from his misconduct of record. Also, the Board does not accept alcohol abuse or drug abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that Alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions. They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment. The Board determined that the applicant's age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity and personal problems were a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Board will not grant relief concerning these issues.

Concerning the applicant’s post-service, the following is provided for the applicant’s edification. 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 he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy. NDRB experience has shown that applicants with less than five years sobriety (assumed from the applicant’s completion of treatment on 5 June 1998) 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 he 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 he maintains an alcohol and drug free lifestyle. Verifiable documentation of such a lifestyle is essential. The applicant is encouraged to continue his endeavors, remain sober, and apply for a personal appearance hearing prior to 25 February, 2006.

Pertinent Regulation/Law (at time of discharge)
A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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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