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NAVY | DRB | 2001_Navy | ND01-00336
Original file (ND01-00336.rtf) Auto-classification: Denied


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

ex-EM2, USN
Docket No. ND01-00336

Applicant’s Request
The application for discharge review, received 010129, 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. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010710. 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. I would like the board to consider the issue of drug addiction which is why I was discharged to begin with. It has taken me 15 yrs to come grips my addiction and resultant problems. At the submission of this document I've been clean & sober for 6 mos. that’s not long for most people however for me it's the longest length of sobriety I've had. I'm dealing with my addiction through cocaine anonymous (CA) and I'm very happy to state that my life has a new beginning thru god and this program. I've a new job, home and am experiencing life as never before. Part of this process is cleaning up my past which is why the upgrading of my discharge is so very important. It will help establish a foothold in my community and secure my place in society. In all honesty I do believe that aside from my addiction which is really no different from the alcoholism I've witnessed while serving, my service record speaks for itself. I was proud to serve my country and despite the circumstances of my discharge, I'm proud to be ex-navy. I spent 12 years doing what I enjoyed. My indiscretions are regrettable but unfortunately I can't relive m life. I have new decisions to make, all in the name of sobriety. An upgrade in my discharge could improve my life immensely. I appreciate the boards time in looking at my request. I do realize whatever decision is made, isn't an easy one. Thank you, 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: USN                        740129 - 771029  HON
                  USN                       771030 - 830901  HON
         Inactive: USNR (DEP)     740104 - 740128  COG

 Period of Service Under Review :
Date of Enlistment: 830902               Date of Discharge: 860120

 Length of Service (years, months, days):

         Active: 02 04 19
         Inactive: None

 Age at Entry: 28                          Years Contracted: 4

Education Level: 12                        AFQT: 60

 Highest Rate: EM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.73 (3)    Behavior: 2.93 (3)                OTA: 3.66

 Military Decorations: None

 Unit/Campaign/Service Awards: GCA (2 ND ), HSM, NEM, NDSM, SSDR, BATTLE"E"AWARD

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 :

830902:  Reenlisted onboard USS CUSHING (DD-985) for 4 years.
830729:  Retention Warning: Advised of deficiency (You have been identified as a drug abuser through urinalysis screening/awarded NJP under Article 15, UCMJ for a drug related offense), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
850618:  NAVDRUGLAB SAN DIEGO, CA urinalysis report indicates applicant tested positive for cocaine.
850724:  NAVDRUGLAB SAN DIEGO, CA urinalysis report indicates applicant tested positive for cocaine.

850812:  NJP for violation of UCMJ, Article 92: Dereliction of duty.
         Award: Forfeiture of $564.00 pay per month for 1 month (suspended for 3 months). No indication of appeal in the record.
850830:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance as determined by NAVDRUGLAB SDIEGO CA 182011Z JUN 85, to wit: cocaine.
         Award: Forfeiture of $564.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-5. No indication of appeal in the record.

850904:  CAAC evaluations indicates applicant is psychologically dependent on alcohol and drugs.

850916:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by the wrongful use of cocaine, and misconduct due to Commission of a serious offense, to wit: Dereliction of duty.
850912:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
851008:  An Administrative Discharge Board, based upon the preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse and misconduct commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

851126:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse and misconduct due to Commission of a serious offense.

851202:  DAAR indicates applicant was found drug dependent, not amenable, recommended for separation not via VA Hospital. On 27 August 1985 he again admitted wrongful use of a controlled substance (cocaine) to a NIS agent. He stated that he does not want to attend a Level III inpatient program. This is his second drug related incident and his potential for further abuse is high.

860110:  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 860120 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, it has taken him 15 years to come to grips with his addiction and resultant problems. He has been clean and sober for 6 months. An upgrade to his discharge could improve his life immensely. 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 any of these documents. Unfortunately the applicant had only 15 years from the date of his discharge to request an upgrade to his discharge and that time period has expired. The applicant’s only other option at this time is to petition the Board of Correction of Naval Records (BCNR) to review his case for discharge upgrade. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective
16 Dec 85 until 05 Oct 86, 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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