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NAVY | DRB | 2001_Navy | ND01-00436
Original file (ND01-00436.rtf) Auto-classification: Denied


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

ex-HT3, USN
Docket No. ND01-00436

Applicant’s Request
The application for discharge review, received 010222, 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 traveling panel closest to San Diego, CA. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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 3630600.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge was improper and inequitable due to the fact that it was based on one isolated incident in an otherwise 12 years of superior service, with no other adverse action.

2. I went through the chain of command requesting aid. In addition, I also searched for programs able to help me, however no one was forth coming in any type of assistance.

3. I was advised to misrepresent myself by my immediate supervisor.

4. I was advised that I would be on a restricted status aboard ship for additional months if I were to consult counsel.

5. I was never given the opportunity to consult or hire counsel, nor was I given the chance to defend myself verbally or submitting written documentation.

6. Any document during this incident, September 1995 through December 1995, I signed under duress and intimidation.

7. Since enlisting in February of 1983, I have supported the Navy's Equal Opportunity as Affirmative Action programs and still do.

8. I have been awarded the merit unit commendation, the National Defense Service medal and the Navy Good Conduct Medal three times.

9. I received an average of 4.0 on my performance evaluation reports for the last 12 years of service.

10. I have always been dedicated and performed all my duties in an accurate and superior manner. I have been identified as a professional and a leader, who can be counted on and an invaluable asset to the department and command.

11. I am very remorseful for the incident and since my discharge my life has been ruined. I have been devastated by the decision. I respectfully request a general discharge, under honorable conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Ten pages from applicant's service record
Character/job reference dated January 31, 2001 (2 copies)
Character/job reference, undated
Character/job reference, undated
Character reference, undated
Copy of certificate dated August 23, 2000
Copy of certificate of completion dated August 1, 2000
Copy of certificate of completion of apprenticeship dated August 1, 2000
Letter fro ITC Corporation
Copy of card re: certificate of completion of apprenticeship dated August 1, 2000
Copies of certificates of academic achievement dated 1997-1998, 1998-1999
Copy of Annual Apprenticeship Recognition Ceremony program for 1999/2000 graduates dated September 23, 2000
Copy of graduation evaluation as of September 27, 2000
Letter from San Diego City College dated September 28, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        831024 - 871015  HON
                  USN                       871016 - 911014  HON
         Inactive: USNR (DEP)     830212 - 831023  COG

 Period of Service Under Review :
Date of Enlistment: 911015               Date of Discharge: 951231

 Length of Service (years, months, days):

         Active: 04 02 27
         Inactive: None

 Age at Entry: 26                          Years Contracted: 6

 Education Level: 12                        AFQT: 50

 Highest Rate: HT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (5)    Behavior: 3.60 (5)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM, GCM (3)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950926:  NAVDRUGLAB, San Diego, CA reports applicant's urine sample received 950919 tested positive for amphetamine/methamphetamine.

951121:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 18Sep95 to 19Sep95, violation of UCMJ, Article 107: False official statement on 6Nov95, violation of UCMJ, Article 112A: Wrongful use of amphetamine/methamphetamine on 26Sep95.
         Award: Forfeiture of $661 per month for 2 months, restriction and extra duty for 45 days, reduction to HT3. No indication of appeal in the record.
951127:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse.
951127:  Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
951213:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse. Commanding officer’s comments (verbatim): HT3 (applicant) reported after her UA that she had been drugged while visiting in Rosarito, Mexico. As result of two day UA she provided a urine sample (unit sweep), and tested positive for amphetamine/methamphetamine. HT3 (applicant's) case was held in abeyance pending receipt of laboratory documents to determine the drug levels. On 24 October 1995, HT2 (applicant) appeared at mast and denied knowingly ingesting the drugs and stated she would be willing to submit to a polygraph. HT2 (applicant's) case was held in abeyance pending polygraph results. On 15 November 1995, during the polygraph examination, HT2 (applicant) admitted she knowingly ingested the drugs and had done so because she had been intoxicated. HT2 (applicant) also admitted to making up the story that she had been drugged. On 21 November 1995, HT3 (applicant) appeared at mast and was awarded the appropriate punishment. Strongly recommend immediate separation from the naval service with an other than honorable discharge.

951228:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960126:  Drug and Alcohol Abuse Report: Amphetamines abuse, ashore off duty. Random urinalysis 960916. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: Commanding officer has determined that member is not dependent on drugs, based on medical officer's diagnosis. Member's past service was superior, present service is average. Exhibits no potential for productive service. Member has been administratively separated from the naval service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951231 under other than honorable conditions for misconduct due to commission of a serious offense (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).

The applicant’s first issue states: “My discharge was improper and inequitable due to the fact that it was based on one isolated incident in an otherwise 12 years of superior service, with no other adverse action.” The NDRB found that the applicant’s misconduct, two serious military offenses, warranted separation and a characterization of service as Other Than Honorable. The Board found no impropriety or inequity in the discharge. The negative aspects of the applicant’s service outweighed her positive contributions. Relief is denied.

The applicant’s second issue states: “I went through the chain of command requesting aid. In addition, I also searched for programs able to help me, however no one was forth coming in any type of assistance.” There is nothing in the record supporting this issue. The applicant denied her drug use until she took a polygraph test. On a drug abuse evaluation on 960126 the attending physician found applicant not dependent and recommended separate not via VA hospital. Relief is not warranted.

The applicant’s third issue states: “I was advised to misrepresent myself by my immediate supervisor.” The record shows the applicant was afforded her rights throughout the discharge proceedings. The applicant declined legal counsel. The Board found no impropriety or inequity in the discharge. Relief is denied.

The applicant’s fourth issue states: “I was advised that I would be on a restricted status aboard ship for additional months if I were to consult counsel.” The record shows the applicant declined to consult counsel during her discharge proceedings. The applicant failed to provide evidence of any coercion or impropriety in the discharge. Relief is denied.

The applicant’s fifth issue states: “I was never given the opportunity to consult or hire counsel, nor was I given the chance to defend myself verbally or submitting written documentation.” The record shows the applicant declined counsel and waived her rights to submit verbal or written statements on 951127. Relief is denied.

The applicant’s sixth issue states: “Any document during this incident, September 1995 through December 1995, I signed under duress and intimidation.” The applicant failed to provide evidence to support this issue. There is nothing in the service record to support this issue. Relief is denied.

The applicant’s seventh issue states: “Since enlisting in February of 1983, I have supported the Navy's Equal Opportunity as Affirmative Action programs and still do.” The applicant’s issue is non decisional. The applicant was separated for her misconduct. Relief is not warranted.

The applicant’s eighth issue states: “I have been awarded the merit unit commendation, the National Defense Service medal and the Navy Good Conduct Medal three times.” The Board found the positive aspects of the applicant’s service were outweighed by her documented misconduct-Drug Abuse and False Official Statement. Relief is denied.

The applicant’s ninth issue states: “I received an average of 4.0 on my performance evaluation reports for the last 12 years of service.” The Board averaged the applicant’s evaluations from her last enlistment (five evaluations) and found her average 3.6. The applicant’s misconduct out weighed her otherwise creditable service. Relief is not warranted.

The applicant’s tenth issue states: “I have always been dedicated and performed all my duties in an accurate and superior manner. I have been identified as a professional and a leader, who can be counted on and an invaluable asset to the department and command.” This issue is non decisional. The applicant’s service was taken into account at the time of discharge. An Other Than Honorable discharge accurately characterizes her service. Relief is denied.

The applicant’s eleventh issue states: “I am very remorseful for the incident and since my discharge my life has been ruined. I have been devastated by the decision. I respectfully request a general discharge, under honorable conditions.” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate her sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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