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NAVY | DRB | 2001_Navy | ND01-00493
Original file (ND01-00493.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND01-00493

Applicant’s Request
The application for discharge review, received 010309, 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 OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action. And I feel that I have grown since then. Also attached please find an example of one of the many character references which I have received in my current position.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated December 5, 2000

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: 910731               Date of Discharge: 920707

 Length of Service (years, months, days):

         Active: 00 09 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 42

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.40 (1)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

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 :

920501:  NAVDRUGLAB, Oakland, CA reports applicant 's urine sample received 920427, tested positive for THC.
920513:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order, violation of UCMJ, Article 112A: Wrongful use of controlled substance.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
920519:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
920522:  Applicant advised of his rights and having elected not to consult 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.
920604:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.
920606:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): The Executive Officer, serving in the capacities as acting Commanding Officer, authorized urinalysis of Seaman Recruit (applicant) based on the probable cause principle. A reliable eyewitness observed Seaman Recruit (applicant's) drug use and a certified drug dog "alerted" several separate times on Seaman Recruit (applicant's) bunk/coffin locker the following morning. The subsequent authorized urine test produced positive results. Furthermore, Seaman Recruit (applicant) confessed to at least two instances of drug use over the last several months. Seaman Recruit (applicant) is determined not drug dependent enclosure (9), refers; no Veterans Treatment Entitlement. Recommend Other Than Honorable discharge.

920707:  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 920707 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 his issue, the Board found 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.

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. 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, is considered. The applicant provided one letter of recommendation from his supervisor as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. 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. 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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