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NAVY | DRB | 2001_Navy | ND01-00268
Original file (ND01-00268.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00268

Applicant’s Request
The application for discharge review, received 010108, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance before the board in the Washington National Capital Region. The applicant listed the American Legion as his 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 010601. 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) This former member opines that personal problems, the death of his mother, sufficiently mitigated his misconduct of record to warrant separation 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 conduct, 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 applicant
Copy of DD Form 214
Appointment of Veterans Service Organization as claimant's representative

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870409 - 870415  COG

 Period of Service Under Review :
Date of Enlistment: 870416               Date of Discharge: 890725

 Length of Service (years, months, days):

         Active: 02 03 10
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 12                        AFQT: 56

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF*            OTA: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 21

*No marks found in service record.

 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 :

870422:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 880406:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance between 1Feb88 and 11Feb88, to wit: cocaine, violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence 0700, 20Mar88 to 1610, 23Mar88 (3 days/surrendered); (2) Unauthorized absence 0001, 6Mar88 to 0013, 9Mar88 (3 days/surrendered).
         Award: Forfeiture of $375 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
881109:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (5 Specifications):
         Specification 1: Unauthorized absence 1230, 20Jun88 to 2015, 27Jun88 (7 days/surrendered).
         Specification 2: Unauthorized absence 0715-1045, 28Jul88.
         Specification 3: Unauthorized absence from 2330, 4Aug88 to 0430, 5Aug88.
         Specification 4: Unauthorized absence from 2330, 6Aug88 to 0125, 7Aug88.
         Specification 5: Unauthorized absence from 2315, 5Sep88 to 1600, 6Sep88.
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: No punishment.
 CA 881129: Sentence approved and ordered executed.

881205:  Medical record: Applicant referred for some undetermined drug screen - reportedly positive for cocaine in Feb88 . Unable to determine why he is still on active duty. Unable to contact DAPA. Matter discussed with CMAA - SNM reeking of alcohol - returned to his command for competency for duty.

890103:  Applicant to pretrial confinement.

890227:  Applicant released from pretrial confinement.

890227:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0715, 26Dec88 to 1630, 3Jan89 (8 days/surrendered).
         Charge II: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of cocaine between 10Sep88 and 20Sep88.
         Findings: to Charge I and II and specifications thereunder, guilty.
         Sentence: Forfeiture of $450.00 for 3 months, confinement for 45 days.
         CA 890413: Sentence approved and ordered executed.

890327:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by service record entries.
890411:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890425:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.
890426:  Applicant waived administrative board.

 890426:  Applicant declined treatment.

890503:  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).

890523:  Chief of Naval Personnel forwarded discharge recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs).

890530:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890613:  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 890725 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 representative submitted the following as issue 1: (Equity Issue) This former member opines that personal problems, the death of his mother, sufficiently mitigated his misconduct of record to warrant separation under honorable conditions.
 While the Board expresses sympathy over the loss of the applicant’s mother, the NDRB does not concur that the applicant’s personal problems mitigated his violations of UCMJ Article 112a for cocaine use and numerous violations of Article 86 for unauthorized absence. The Board will not grant relief on the basis of this issue.

 The applicant’s representative submitted the following as issue 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 conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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, is considered. The applicant provided only his own personal statement as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He 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. Relief denied.




Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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