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NAVY | DRB | 2001_Navy | ND01-00304
Original file (ND01-00304.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND01-00304

Applicant’s Request
The application for discharge review, received 010117, 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 010829. After a thorough review of the records, 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. I was discharged from the Navy 4/87 under other than honorable conditions for a substance abuse problem. Instead of asking for help to recover, I tried to cover it up. Now almost thirteens years later, I have led an understanding life of sobriety. I'm a 39 year old very responsible young woman. I am requesting an upgrade to an honorable discharge for several reasons. First I am deserving because of my hard work while serving in the U.S. Navy, and my hard work up until now. Secondly, I am trying to get a home loan from the Veteran's administration. I believe that I have worked hard in my life, and I deserve to make a wise decision into home ownership. I have submitted, the proper paperwork to have my military records sent to me, which is needed to request for a certificate of eligibility. Thank you for your time, Sincerely,

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 830609               Date of Discharge: 880406

 Length of Service (years, months, days):

         Active: 04 09 28
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (44 months extension)

 Education Level: 14                        AFQT: 59

 Highest Rate: RMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (5)    Behavior: 3.00 (5)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

840716:  NJP for violation of UCMJ, Article 134: Wrongful use of a controlled substance, to wit: marijuana on 12Jun84.
         Award: Forfeiture of ½ pay per month for 2 months, reduction to RMSA. No indication of appeal in the record.
840716:  Retention Warning: Advised of deficiency (Knowing and wrongful use of a controlled substance, to wit: marijuana.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

850111:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, to wit: not reporting to CMAA for unit sweep urine sample on 8Jan85.
         Award: Reduction to RMSR. No indication of appeal in the record.
850211:  NJP for violation of UCMJ, Article 91: Use of disrespectful language toward a petty officer on 8Feb85.
         Award: Forfeiture of $50 per month for 1 month. No indication of appeal in the record.
850813:  Retention Warning: Advised of deficiency (Use of disrespectful language toward a petty officer, failure to obey a lawful order and wrongful use of a controlled substance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861125:  NJP for violation of UCMJ, Article 116: Participate in a breach of peace by wrongfully engaging in a fistfight on 22Nov86, violation of UCMJ, Article 128: Assault a petty officer on 23Nov86.
         Award: Forfeiture of $100 per month for 1 month, extra duty for 15 days, reduction to RMSA. Reduction suspended for 6 months. No indication of appeal in the record.
861126:  Vacate reduction to RMSA awarded at CO's NJP dated 25Nov86.

 861126:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Wrongfully communicate a threat to injure another on 25Nov86, (2) Wrongfully communicate a threat to injure another on 25Nov86.
         Award: Restriction for 10 days, reduction to RMSR. Reduction suspended for 6 months. No indication of appeal in the record.
870608:  Applicant's extension of 44 months made operative.

880108:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of cocaine.
         Findings to Charge I and specification thereunder, guilty.
         Sentence: CHL for 5 months, forfeiture of $425 per month for 5 months, reduction to RMSR.
         CA 880119: Sentence approved and ordered executed, except for confinement in excess of 31 days will be suspended for 1 year from date of trial.

 880108:  Applicant to confinement.

 880202:  Applicant from confinement.

880210:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to and misconduct due to commission of a serious offense as evidenced by nonjudicial punishment on 11 January 1985 for failure to obey lawful order, nonjudicial punishment on 11 February 1985 for disrespectful language toward a petty officer, nonjudicial punishment on 25 November 1986 for assault on a petty officer, and nonjudicial punishment on 26 November 1986 for communicating threats; and by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment on 16 July 1984 for wrongful use of marijuana and special court-martial conviction on 8 January 1988 for wrongful use of cocaine.
880210:  Applicant advised of her rights and having consulted 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.
880216:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.
880217:  Drug and Alcohol Abuse Report: Cocaine abuse, 1-3 times a month. Random urinalysis 8Jan88. Physician found applicant not dependent. Commanding officer recommended separate not via VA hospital. Comments: RMSR (applicant's) record amply attests to her lack of self discipline and disregard for Navy rules and regulations. RMSR (applicant) is presently awaiting an administrative discharge from the naval service.

880219:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and by reason of misconduct due to drug abuse (use).

880306:  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 880406 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to the applicant’s issue, the applicant states she is deserving of an upgrade to her discharge because of her hard work both while in the Navy and as a civilian. She also states she wants her VA home loan benefits. The Board is under no obligation to upgrade an individual’s discharge for the purpose of obtaining VA benefits. Additionally, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge. Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of her not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received prior to 27 April 2002.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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 " afls10.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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