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NAVY | DRB | 2001_Navy | ND01-00398
Original file (ND01-00398.rtf) Auto-classification: Denied


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


ex-SHSN, USN
Docket No. ND01-00398

Applicant’s Request
The application for discharge review, received 010212, 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. Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221. 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. We ask that after you review you change the discharge to honorable. The applicant has become an outstanding member of society and has stayed active in Teen Challenge.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference from Reverend dated November 4, 2000
Character reference dated December 12, 2000
 Copy of certificate for licensed minister dated October 24, 1999
 Copy of certificate dated November 17, 1996
Copy of DD Form 214 from previous enlistments (2)
 Copy of applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         

         Inactive: USNR (DEP)     880226 - 880508  HON
 Inactive: USNR-R                  870605 - 880225  HON
          Active: USN                        830330 - 870329  HON
 Inactive: USNR (DEP)     830328 - 830329  COG
          USNR-R           820829 - 830327  HON
 Active: USNR              790730 - 820828  Released ACDU
          Inactive: USNR            790724 - 790729  Reported ACDU
        
Period of Service Under Review :
Date of Enlistment: 880509               Date of Discharge: 911108

 Length of Service (years, months, days):
         Active: 03 06 00
          Inactive: None
Age at Entry: 28                          Years Contracted: 6

 Education Level: 12                        AFQT: 49
Highest Rate: SH2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (4)    Behavior: 3.55 (4)                OTA: 3.65
Military Decorations: None

 Unit/Campaign/Service Awards: SSR, BER
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 :

910906:  NJP for violation of UCMJ, Article 112A: Wrongfully use amphetamine/methamphetamine.
         Award: Forfeiture of $758 per month for 2 months, restriction and extra duty for 45 days, reduction to SN3. Forfeiture suspended for 6 months. No indication of appeal in the record.
910913:  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 a controlled substance.
910923:  Applicant advised of his 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.
911010:  NAVDRUGLAB, San Diego, CA reports applicant's urine sample, received 911004, tested positive for amphetamine/methamphetamine.
911011:  Medical evaluation for drug abuse found the applicant to be an amphetamine abuser, alcohol dependency - in remission, pathological gambling - in partial remission, adult child of alcoholic, not drug dependent.

911015:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).
911031:  Applicant states frequency of drug use during current enlistment consisted of weekend use during period May91 to Aug91.

 911107:  BUPERS 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 911108 under other than honorable conditions for misconduct due to drug abuse (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 Board found that the applicant’s commanding officer recommended that the applicant be discharged under honorable conditions. However, on 910913, the applicant was 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 a controlled substance. The applicant consulted with counsel certified under UCMJ Article 27B, and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The separation authority directed the discharge under other than honorable conditions. This action was proper and equitable. Relief denied.
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 relief, 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), effective 15 Aug 91 until 04 Mar 93, 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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