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NAVY | DRB | 2001_Navy | ND01-00492
Original file (ND01-00492.rtf) Auto-classification: Denied


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


ex-MT3, USN
Docket No. ND01-00492

Applicant’s Request
The application for discharge review, received 010306, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review before a traveling panel closest to Boston, Massachusetts. The applicant listed the Department of Veterans' Services as the 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 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 (verbatim)

1. QM2 M. P. M_, Jr., who lied in his testimony at my court martial, when it was he
who was my roommate, and the one who introduced me to my one time drug use.

2. Statements from QM M_, Lt. B_, FTC M_, who all said that I should be kept in the service, and if discharged I should receive a Honorable or Under Honorable Conditions discharge.

3. Board failed to take into consideration my superior performance evaluations, Strategic Deterent Insignia TR/3 Gold Stars, lst Good Conduct Medal, Sea Service Deployment Ribbon, Superior Student Performance (I received 4.0 Personal Behavior on 2/13/89), Cdr Officer NAVSUBSCH. J.S. B_ with 98 percent grade. No record in my hearing transcripts.

4. Failure of the board to request medical information from the military psychiatrist who was treating me for depression, Lt. Cdr. Dr. H_. Review my original entry service records, showing that I had had a head injury before entering the service.

5. My discharge was inequitable because it was based on one isolated incident in 50 months of Honorable Service.

 6. Do to youth and ignorance, I failed at first to consult with counsel, and was badgered and pressured into submitting to a Polygraph by my Captain at Captain's Mast, my life was crashing down around me, and I did'nt understand all of the ramifications of my actions during that time, causing me to take chances that I have regretted for the past ten years.
7. After finishing boot camp 1986 I continue on to Sub School, for the next eight weeks, and then went on to electronics for over two years before being assign to the USS GRANT April 1987 and had no idea what life aboard sub would be like and my treatment by other commission and non-commission officers was wrong, as a 2 nd class petty officer I was assigned duties to clean bilges polish brass etc., which I considered demeaning for my education.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Statement from applicant dated March 1, 2001
 Copy of applicant's resume
 Character reference dated November 10, 2000
 Letter from applicant's doctor dated October 30, 2000
 Letter from psychotherapist at ServiceNet
Copy of applicant's driver's license
 Copy of applicant's American Red Cross volunteer blood/organ donor card
Copy of certificate of appreciation
Copy of press release
Copy of medical records from Department of Veterans Affairs
Statement from applicant
Copy of chronological applicant's resume' for University Without Walls
Copy of unofficial transcript
Copy of urinalysis dated December 18, 1996
Form from Amherst Housing Authority dated July 9, 1998
Copy of nine page from applicant's medical record from Department of Veterans Affairs
Statements from doctors dated October 28, 1998 (2)
Sixty-two pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        851125 - 890213  HON
          Inactive: USNR (DEP)     851107 - 851124  COG
Period of Service Under Review :
Date of Enlistment: 890214               Date of Discharge: 900504

 Length of Service (years, months, days):
         Active: 01 02 21
         Inactive: None
Age at Entry: 24                          Years Contracted: 6

 Education Level: 12                        AFQT: 73
Highest Rate: MT2(SS)

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.60 (1)    Behavior: 2.60 (1)                OTA: 3.20

 Military Decorations: None
Unit/Campaign/Service Awards: SDPI with 3 Gold Stars, SSDR, GCM

 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 :

891113:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine.
         Award: Forfeiture of $583 per month for 2 months, restriction for 60 days, reduction to MT3. No indication of appeal in the record.
891221:  Drug and Alcohol Abuse Report: Cocaine abuse. Abuse denied. Random urinalysis 891113. CAAC found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: Average worker, showing improvement. Well liked by his peers. Does not have the exceptional potential required for retention.
900404:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of a controlled substance (cocaine).
900404:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
900405:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900427:  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 900504 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).
In response to applicant’s issues 1 and 7, the Board found that the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative. Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct. The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.
 No relief will be granted concerning this issue.
In response to applicant’s issues 2 and 3, the applicant’s Administrative Discharge Board, as well as this Board, takes into account all statements made by witnesses, enlisted performance evaluation averages and any awards/decorations the applicant may have. Unfortunately, the applicant’s service record and witness testimonies did not mitigate the applicant’s violation of the Navy’s ‘zero-tolerance’ policy toward illegal drug users. The Board cannot grant relief on the basis of this issue.
In response to applicant’s issue 4, the Board fails to see a connection between any medical or psychological condition the applicant may have now or had during or prior to his naval service and his violation of UCMJ Article 112a for using cocaine. This is not an issue for which the Board will grant relief.
In response to applicant’s issue 5, the Board finds that the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 6, the Board found that the applicant's age, education level, and test scores qualified him for enlistment. While he may feel that his “youth and ignorance” was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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. The applicant provided evidence of drug testing and some documentation of community service, continuing education, and employment as documentation of his post-service. However, for the Board to consider an upgrade to the applicant’s discharge, his documentation needs to be more encompassing than what was provided. The applicant is definitely on the right track in his accomplishments but the Board is looking for o utstanding post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct to exculpate him of his serious offense. Therefore no relief will be granted. He is encouraged to continue with his pursuits and 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. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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