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NAVY | DRB | 2001_Navy | ND01-00326
Original file (ND01-00326.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00326

Applicant’s Request
The application for discharge review, received 010124, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. 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 010629. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Dear Sir or Main

This letter is regarding my "OTHER THAN HONORABLE" discharge. Ever since my discharge from the Navy I have stayed out of trouble and have always held a steady job. I am currently working at Les Schwab Tires in Moses Lake, Wa. and I feel that my discharge status will hold me back from doing what I have always wanted to do and that is being a Firefighter/EMT. I realize that the mistake I made 2 1/2years ago is the biggest in my life and I do not want it to haunt me for the rest of my life. In the summer of 2000 1 helped with a motorcycle accident out in our local sand dunes, I had to perform CPR for 45 min. on a 19-year old kid, what EMS workers or I did not know was that there was no way we could save him. After that incident I was devastated and told myself that I would do what I had to do to become a Firefighter/EMT, and the most important thing was to try to change my discharge status. I respectfully request that my discharge be changed so I can follow through with the career of my dreams and help people in need. I know this letter is not much but I have never been good at writing letters, especially convincing ones that my life depends on, so I hope this letter will do, if not I guess I will try again at a later date.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from applicant's father dated January 17, 2001
Letter to applicant's father from Commanding Officer dated July 22, 1997
Letter from applicant's father to Commanding Officer dated July 2, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970130 - 971130  COG

 Period of Service Under Review :
Date of Enlistment: 971201               Date of Discharge: 980831

 Length of Service (years, months, days):

         Active: 00 09 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 43

 Highest Rate: SR

 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: None

*No marks found in service record.

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

980710:  NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongful use of a controlled substance on 13Jun98, to wit: cocaine; (2) Wrongful introduction of a controlled substance, on 13Jun98, to wit: cocaine.; violation of UCMJ, Article 86: Unauthorized absence 23Jun98, to wit: 2200, 23Jun98 - 0130, 24Jun98 muster.
         Award: Forfeiture of $463 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
980803:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.
980803:          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.
980803:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use). Commanding officer’s comments (verbatim): I recommend that SR (applicant) receive an Other Than Honorable (OTH) discharge. SR (applicant) reported at this Command on 01 March 1998, SR (applicant) was asked by SA L_ to drive him to Denny's Restaurant. SR (applicant) had a vague idea that SA L_ was going to buy some drugs but was not sure. SR (applicant) stepped into a liquor store while waiting for SA L_ to make the deal. On the way back to the base, SA L_ showed SR (applicant) a bag of cocaine. SR (applicant) did not object and continued his vehicle onto the base. Later that evening SA L_ and SR (applicant) departed for a bar in Thousand Oaks, California. It was there that SR (applicant) inhaled two lines of cocaine. Upon being questioned by RM1 P_, SR (applicant) initially lied about where he did the cocaine but later confessed doing the cocaine with SA L_ in Thousand Oaks. SR (applicant) admitted further at Captain's Mast that he used cocaine.

980817:  Commander, Naval Air Warfare Center Weapons Division, China Lake, CA 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 980831 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 he has stayed out of trouble and always held a steady job, but his discharge status is holding him back from doing what he’s always wanted to do. The mistake he made 2.5 years ago was the biggest in his life and he doesn’t want it to haunt him the rest of his life. The applicant was discharged with an OTH for drug abuse. 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. E vidence 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 any of these documents. 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. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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