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NAVY | DRB | 2001_Navy | ND01-00401
Original file (ND01-00401.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND01-00401

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 personal appearance hearing before the Board in the Washington National Capital Region. The applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808. 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 – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (Equity Issue) This former member avers that he was unjustly discharged because his command failed to conduct the urinalysis that he tested positive for cocaine in accordance with Navy regulations. The fact is that he never used any illegal drugs and warrants recharacterization of his discharge.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of her application.
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: USNR (DEP)     861126 - 861215  COG

 Period of Service Under Review :
Date of Enlistment: 861216               Date of Discharge: 890629

 Length of Service (years, months, days):

         Active: 02 06 14
         Inactive: None

 Age at Entry: 33                          Years Contracted: 4

 Education Level: 12                        AFQT: 43

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.73 (3)    Behavior: 2.60 (3)                OTA: 2.73

 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

861219:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 861219:  Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL: Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861230:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly. Accession urinalysis December 1986. Not dependent, Level I treatment. Commanding officer recommended retention and written warning made on page 13 of service record. Comments: SNM tested positive urinalysis screening accession into recruit training.

870927:  NJP for violation of UCMJ, Article 134: between 2Jul87 and 2Aug87.
         Award: Reduction to AA. Reduction suspended for 3 months. No indication of appeal in the record.
880622:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0700, 28Apr88 to 0655, 29Apr88, (2) Unauthorized absence from 0700-1610, 2May88, (3) Unauthorized absence 0830-1515, 11May88.
         Award: Forfeiture of $50 per month for 2 months, restriction and extra duty for 20 days. No indication of appeal in the record.
880629:  Retention Warning from Attack Squadron EIGHTY-FIVE: Advised of deficiency (Lack of financial responsibility. Violation UCMJ Article 134, awarded punishment at Captain's Mast on 27Sep87 and violation UCMJ Article 86, awarded punishment at Captain's Mast on 22Jun88, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880913:  NJP for violation of UCMJ, Article 86 (3 specs): (1) 1400, 17-18Aug 88, (2) Missed duty section muster on 2045, 17Aug88, (3) Missed watch at 1930, 17Aug88, violation of UCMJ, Article 92: Disobeying a general order, to wit: no phone recall number (number disconnected).
         Award: Forfeiture of $50 per month for 2 months, restriction and extra duty for 20 days. No indication of appeal in the record.
881101:  Retention Warning from Attack Squadron EIGHTY-FIVE: Advised of deficiency (Violation UCMJ Article 134, awarded punishment at Captain's Mast on 27Sep87, violation UCMJ Article 86, awarded punishment at Captain's Mast on 22Jun88 and violation UCMJ Article 86, awarded punishment at Captain's Mast on 13Sep88), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890202:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample, received 890225, tested positive for cocaine.

890219:  Drug screening: No abuse pattern noted.

 890225:  Drug and Alcohol Abuse Report: Cocaine abuse. Abuse denied. Unit sweep urinalysis on 890120. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital.
890225:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine on 20Jan89.
         Award: Forfeiture of $429.45 per month for 2 months, restriction for 45 days, reduction to AA. Appealed 890302 (date extracted from Commander letter dated 13Apr89). Appealed denied 890413.
890227:  Applicant tested positive for marijuana after being placed on 4 by 6 surveillance program.
890228:  Attack Squadron EIGHTY-FIVE notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.
890327:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample, received 890314, tested positive of THC.
890418:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890509:  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, misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890509:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, commission of a serious offense and a pattern of misconduct. Commanding officer’s comments (verbatim): I thoroughly concur with the findings and recommendations of the board. AA (applicant) has no potential for further useful naval service. He has developed a pattern of constant disregard for military authority. His continued drug involvement is a severe detriment to the welfare and morale of my command.

890612:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890629 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

In the applicant’s issue 1, the Board found that the applicant was awarded NJP on 4 separate occasions for unauthorized absence, missing watch, missing section muster, disobeying a general order, and wrongful use of cocaine. Additionally, the applicant tested positive for THC during surveillance testing. The applicant states in issue 1 that he was “unjustly discharged because his command failed to conduct the urinalysis” but the service and medical record clearly document the applicant’s positive urinalysis in 2 separate instances. The Board found the applicant was equitably discharged for his offenses and is deserving of a characterization as other than honorable. Relief is denied.

In the applicant’s issue 2, 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 (D). 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 his 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 reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 6 effective 11 Jan 89 until 24 May 89), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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