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NAVY | DRB | 2001_Navy | ND01-00165
Original file (ND01-00165.rtf) Auto-classification: Denied


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

ex-RMSN, USN
Docket No. ND01-00165

Applicant’s Request
The application for discharge review, received 001127, requested that the characterization of service on the discharge be changed to honorable. 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 010503. 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

1. Sirs, In April, 1992, I was discharged from the U.S. Navy for an alleged infraction which occurred off base and not on military time.

2. In civil court for this alleged infraction, the charge was dismissed (San Diego Municipal Court). I was advised by Naval authorities that zero-tolerance regulations mandated that I be discharged, regardless, and that I could apply to have my discharge status changed at my request at a later date.

3. I pray that the board would consider my request, in consideration of my service in the Gulf Conflict, my otherwise commendable service record, and the effect this incident (to which there were no grounds at the outset) will have on my future life. Thank you

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant's parents, dated November 14, 2000
Copy of DD Form 214
Letter from applicant's parents, dated January 9, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     891227 - 920401  COG

 Period of Service Under Review :
Date of Enlistment: 891227               Date of Discharge: 920401

 Length of Service (years, months, days):

         Active: 02 03 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.35 (4)    Behavior: 3.40 (4)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, BER, NDSM, SASM with 2 Bronze Stars, NUC, KLM

 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 :

891228:  Applicant briefed on Navy's policy on drug and alcohol abuse.

000000:  Applicant pending civil offenses of possession of controlled substances and prohibited use or being under influence of controlled substance. No further information found in service record. [Date unknown]

920312:  Medical evaluation for drug abuse found the applicant to be a drug and ETOH abuser, not drug or ETOH dependent. Recommend Level II treatment.

920313:  NJP for violation of UCMJ, Article 112A: Wrongful use of methamphetamine on 3Mar92.
         Award: Forfeiture of $482 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSN. No indication of appeal in the record.
920317:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of methamphetamine on 3Mar92.
920317:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
920319:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920328:  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 920401 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’s first issue states: “Sirs, In April, 1992, I was discharged from the U.S. Navy for an alleged infraction which occurred off base and not on military time. The record shows the applicant was found guilty at NJP of violation of UCMJ Article 112a (wrongful use of methamphetamines). The applicant was on active duty at the time of the offense. There was no impropriety or inequity in the applicant’s discharge. Relief is not warranted.

The applicant’s second issue states: “In civil court for this alleged infraction, the charge was dismissed (San Diego Municipal Court). I was advised by Naval authorities that zero-tolerance regulations mandated that I be discharged, regardless, and that I could apply to have my discharge status changed at my request at a later date.” Although the applicant states that civil charges were dropped, the record shows the applicant was found guilty at NJP for violation of UCMJ Article 112a. The applicant was afforded all his rights in the discharge proceedings. The Board discerned no inequity or impropriety in the discharge. Relief is not warranted.

The applicant’s third issue states: “I pray that the board would consider my request, in consideration of my service in the Gulf Conflict, my otherwise commendable service record, and the effect this incident (to which there were no grounds at the outset) will have on my future life. Thank you.” The applicant’s positive contributions were outweighed by his misconduct. The Other Than Honorable discharge accurately characterized the applicant’s service. Relief is not warranted.
The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, may be considered by the NDRB. The applicant failed to provide documentation such as drug test results, drug treatment, community service, educational pursuits, or employment verification. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.










































Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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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