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NAVY | DRB | 2001_Navy | ND01-00342
Original file (ND01-00342.rtf) Auto-classification: Denied


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

ex-ABHAA, USNR
Docket No. ND01-00342

Applicant’s Request
The application for discharge review, received 010126, 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 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge was based on one isolated incident in the three years of documented outstanding service with no other infractions.

2. My personnel file / legal briefs will show that this was a one time incident, this statement is reinforced by the letters of support to the legal department on my behalf from department heads and supervising staff.

3. My outstanding documented evaluations and character throughout my teenier in the US Navy should provide The Review Board with a profile of my character and reinforce that this was truly a one-time incident.

4. Due to the nature of my discharge, I have not been able to maximize my potential as a civilian. This unfortunate lapse in my decision-making has closed the doors to many opportunities. I have learned a great deal from this experience and have accepted the repercussions of my actions. I only ask for leniency from The Review Board, along with the opportunity to close this chapter of my life. I have been paying this debt for eight years and truly have learned the meaning of "accountability for your actions". I would greatly appreciate a second chance to move on with my life and pursue the opportunities that are and have been made available to me. I understand that your decision may not go in my favor, but please take into consideration that I have a long life ahead of me, I truly would feel discouraged if this one time incident is the defining moment of my future.
I want to thank you for your time in reviewing this matter.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated February 14, 2001
Letter from applicant dated February 14, 2001
Copy of DD Form 214
Eleven pages from applicant's service record

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: 900925               Date of Discharge: 930723

 Length of Service (years, months, days):

         Active: 02 09 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 9 GED            AFQT: 51

 Highest Rate: ABHAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (4)    Behavior: 3.65 (4)                OTA: 3.85

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, ASM, NMCOSR

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

900925:  Applicant signed Drug and Alcohol Abuse Statement of Understanding.

910106:  Applicant briefed on Navy's policy on drug and alcohol abuse.

910108:  Applicant briefed on Navy's policy on drug and alcohol abuse.
 930526:  NAVDRUGLAB, San Diego, CA reports applicant's urine sample received 930519, tested positive for amphetamine/methamphetamine.
930528:  NJP for violation of UCMJ, Article 112A: Wrongful use of amphetamine/methamphetamine on 17May93.
         Award: Restriction for 30 days, reduction to ABHAA. No indication of appeal in the record.
930601:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by commanding officer's nonjudicial punishment of 28 May 1993.
930601:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
930609:  Drug/Alcohol Evaluation: Methamphetamine abuse, not dependent, recommend separate not via VA hospital.
930618:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under Honorable conditions (General).

930621:  Drug and Alcohol Abuse Report (DAAR): Amphetamines abuse, less than monthly, ashore off duty. Random urinalysis 930517. CAAC recommends separate not via VA hospital. Physician found not dependent and recommends separate not via VA hospital. Commanding officer recommends separate not via VA hospital. Comments: This DAAR is the result of a positive urinalysis conducted on 17May93. Member tested positive for amphetamine/methamphetamine. Member has been a top performer. Although not eligible, demonstrates motivation and potential for continued naval service. Additional comments: Member was screened by CAAC and medical officer and found not dependent. Member was sent to NJP on 28May93 and awarded restriction, reduction in rate and recommended for admin separation.
930625:  Commanding officer recommended discharge under Honorable conditions (General) by reason of misconduct due to Drug abuse (Use). Commanding Officer’s comments (verbatim): “Airman Apprentice P___’s on-duty performance has been outstanding. It is unfortunate that Airman Apprentice P___ tested positive on our command’s random sample inspection, but the CNO’s Drug Policy speaks for itself—Zero Tolerance. As the Navy gets smaller in the years ahead, the need for a high-quality force will become even more critical, and it is unfortunate Airman Apprentice P___ will not be part of that force. Airman Apprentice P___’s conduct falls within the parameter of reference (a), and discharge is warranted. I recommend that Airman Apprentice P___ be separated from the naval service with a General discharge.”

930719:  BUPERS directed the applicant's discharge under Honorable conditions (General) by reason of misconduct due to Drug abuse (Use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930716 under Honorable conditions (General) 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).

Issues 1 and 2. The applicant states, his discharge was based on one isolated incident in three years of documented outstanding service with no other infractions. The applicant used illegal drugs. Drug abuse requires mandatory processing for separation. It was the applicant’s Commanding Officer’s opinion that it was in the best interest of the service to separate the applicant from the military and BUPERS directed the discharge. The discharge was proper and equitable. Relief denied.

Issue 3. The applicant states his character is demonstrated by his outstanding, and documented, evaluations and character throughout his tenure in the Navy. The Board agrees, that the applicant had good evaluations throughout his tenure, but his performance prior to the drug abuse doesn’t mitigate his use of illegal drugs. The discharge was proper and equitable. Relief denied.

Issue 4. The applicant states, he has not been able to maximize his potential as a civilian, due to the nature of his discharge. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 sufficient documentation to warrant an upgrade to his discharge. 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, 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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