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NAVY | DRB | 2001_Navy | ND01-00137
Original file (ND01-00137.rtf) Auto-classification: Denied


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

ex-AA, USNR
Docket No. ND01-00137

Applicant’s Request
The application for discharge review, received 001113, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010510. 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

 Thank you for taking the time to review my discharge. I feel that my discharge should be upgraded for the following reasons:

1. Aside from one drug (Marijuana) incident, my service record was above average, "and so warrants an upgrade to honorable. " (aswauth)
Explanation:     Even after my Summary court-martial for marijuana use, my proficiency marks were above average (3.3 out of a possible 4.0)

2. I had combat service, (aswauth)
Explanation: I was on the first ship that went into the Gulf during Operation Desert
Shield/Storm. We were on alert the entire time we were there. I received the National
Service Medal, and Sea Service Medal.

3. I was never involved in selling or trafficking of drugs, (aswauth)
Explanation:     I just used some marijuana that someone gave me.

4. I received letters of commendation, (aswauth)
Explanation:     I did all jobs assigned well.

5. I have been a good citizen, (aswauth)
Explanation:     I am active in my church as a youth minister, and have a wife and baby girl. I will be taking my exam soon to become a journeyman electrician.

6. My ability to serve was impaired by my youth and immaturity, (aswauth)
Explanation:     I lived with my parents in Scotland, United Kingdom. My Stepfather was stationed with the Navy in Scotland, and when school ended, I wanted to join the U.S. Navy Sea-Bee's. I was accepted and went back home to live with my grandmother before induction into the Navy. I got in a car accident, and was unable to leave for boot camp. This canceled my contract, and I was let go. Somehow, the recruiter talked me into joining the aviation branch. I was so disappointed at not becoming a Sea-bee; I did just what he told me. This lack of direction on my part followed me from command to command. I felt I was trapped and couldn't do anything about it.

7. My ability to serve was impaired because I was not working in the field I was trained in, (aswauth)
Explanation:     I was trained as an aircraft Plane Captain, but after only a short period of working as a plane captain, my division sent me to the corrosion control shop. I later found out in my service records, that corrosion control was supposedly what I was "striking" for. I wanted to "strike" for the aviation electrician rate. In order for me to go to a class "A" school, I would have had to re-enlist for 6 more years. I requested to do on-the-job-training in the aviation electricians' shop, to gain confidence that I could understand the rate. My leading division officer would not approve my request without a replacement in the corrosion control division. We were deployed to the Middle East, and no relief was available. They still wanted me to re-enlist, but without the on-the-job training, I wouldn't do it. My division officer kept me in a transient division (corrosion control) that is made up of new recruits. This is where I got in trouble. Sincerely,

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Three pages from applicant's service record
Copy of DD Form 214
Letter of recommendation dated October 4, 2000
Character reference dated February 3, 1999
Character reference dated December 22, 1997
Copy of special request dated September 24, 1990 with attachment
Copy of special request dated December 3, 1990 with attachment

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     840228 - 890515  ELS

 Period of Service Under Review :
Date of Enlistment: 890612               Date of Discharge: 910426

 Length of Service (years, months, days):

         Active: 01 09 22
         Inactive: 00 00 22

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 11 GED           AFQT: 50

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 2.90 (2)                OTA: 3.30

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 24

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 :

890705:  Applicant ordered to active duty for 36 months under the Active Mariner Program.

890706:  Applicant briefed on Navy's policy on drug and alcohol abuse.

891115:  Retention warning: Advised of deficiency (violation of the UCMJ, Article 86), notified of corrective actions and assistance available, and advised of consequences of further deficiencies, and issued discharge warning.

891122:  NJP for violation of UCMJ, Article 86: Unauthorized absence from shore intermediate Maintenance Activity Naval Reserve Maintenance Facility Long Beach CA, on or about 0700, 30 October 1989 to 0643, 06 November 1989 (5 days).
         Award: Forfeiture of one half of $858.00 per month for 2 months, correctional custody for 30 days, reduction to paygrade E-2. Punishment suspended for 6 months.

910306:  Drug and Alcohol Abuse Report: Marijuana abuse. Random urinalysis on 30Jan91. DAPA recommend separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: AA (applicant) tested positive for THC on random urinalysis on 30Jan91. CAAC and medical screen was to be conducted after disciplinary action. Member is currently serving 30 days confinement in brig. Screenings to be conducted upon member's return to command. AA (applicant) is a marginal performer with no potential for useful naval service. He was a drug waiver upon entry into Navy. This is second drug incident. AA (applicant) is to be administratively discharged. He has no desire to remain in the Navy.
910306:  Special Court Martial
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of a controlled substance.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Conf for 30 days, forfeiture of $200 per month for 1 month, reduction to AA.
         CA 910306: Sentence approved and ordered executed.
910312:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by Naval Drug Screening Lab, San Diego, California report.
910314:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to waive all rights.
910415:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

910417:  Drug and Alcohol Screening: Assessment: Applicant is not drug dependent but is alcohol dependent. Recommendation: Level II via VA if possible. CAAC evaluation for counseling program, appropriate disciplinary action for behavior and attend AA meetings 3 times a week. Administrative separation.

910422:  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 910426 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 states aside from his drug incident his service record was above average. The Board agrees with the applicant’s statement concerning his service record. However, the drug incident requires mandatory processing for separation. The discharge was proper and equitable. Relief denied.

Issue 2. The applicant states he had combat service. The Board determined that neither combat service nor the awards the applicant received during his service mitigate his drug abuse incident and unauthorized absence. The applicant went to court martial for violation of UCMJ, Article 112A and was found guilty. The Board does not have the authority to overturn a court martial decision but may change the discharge for the purpose of clemency. The applicant did not provide sufficient documentation to warrant clemency. Relief denied.

Issue 3. The applicant states he was never involved in selling or trafficking drugs, he just used some marijuana that someone had given him. The discharge was proper and equitable. Relief denied.

Issue 4. The applicant states he received letters of commendation. The Board determined the applicant’s letters of commendation have no bearing on the applicant’s misconduct and subsequent discharge. Relief denied.

Issue 5. The applicant states he has been a good citizen. The applicant failed to present sufficient post-service documentation to warrant an upgrade to his discharge. Relief denied.

Issue 6. The applicant states his youth and immaturity impaired his ability to serve. The Board determined the applicant’s youth and immaturity do not mitigate the applicant’s misconduct and are insufficient grounds to upgrade his discharge. Relief denied.

Issue 7. The applicant states his ability to serve was impaired because he was not working in the field he was trained in. The Board determined this issue has no merit. Relief denied.
 The following is provided for the benefit of the applicant. 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 sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.

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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