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NAVY | DRB | 2001_Navy | ND01-00611
Original file (ND01-00611.rtf) Auto-classification: Denied


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

ex-HTFR, USNR
Docket No. ND01-00611

Applicant’s Request
The application for discharge review, received 010404, 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. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in Washington, D. C. area. The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. 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 20 months of service with no adverse action. Since my discharge I have been isolated to caring for my invalid mother on a daily basis. Also I have since 1992 to been raising three children as a single parent. I have recently recieved some help, with my mother's care and my children having have gotten a reasonable age, would greatly appreciate if you would consider the matter at hand.

In 1997 I took a fall that left me slightly diabled myself.

Having had contributed to the post vietnam-era educational fund. I could greatly use the upgrading of my discharge to seek educational opportunities to find and seek employment opportunities that would better myself and the quality of my self embetterment.

Thank You Greatly For Considering This Matter

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Community Corrections Program dated April 16, 2001
Copy of DD Form 214

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: 850110               Date of Discharge: 860916

 Length of Service (years, months, days):

         Active: 01 08 07
         Inactive: None

 Age at Entry: 24                          Years Contracted: 8

 Education Level: 12                        AFQT: 45

 Highest Rate: HTFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                           Behavior: NOB             OTA: NOB

 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

850110:  Applicant granted a drug waiver.

 850225:  Applicant ordered to active duty for 36 months under the Active Mariner Program.
850226:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 850920:  NAVDRUGLAB, reported applicant's urine sample, received 850913, tested positive for cannabinoids.
851010:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
         Award: Forfeiture of $150 per month for 2 months, reduction to HTFR. Forfeiture of $50 for 2 months suspended for 2 months. No indication of appeal in the record.
851107:  Medical evaluation for drug abuse found the applicant to be a casual marijuana abuser, not drug dependent.

851113:  Applicant notified of intended recommendation for discharge under other than honorable conditions by readcson of misconduct due to drug abuse as evidenced by your NJP for a positive urinalysis.
851209:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
860210:  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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions and recommended suspension contingent upon satisfactory completion of Level II counseling.
860304:  Commanding officer recommended suspension of discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer’s comments (verbatim), if appropriate: HTFR (applicant) has performed well, with no further evidence of drug abuse while in Level I rehabilitation. He will enter Level II rehabilitation at NDW CAAC subsequent to DAPA screening. Recommend suspension of the other than honorable discharge pending successful completion of Level II.

860311:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). However, COMNAVMILPERSCOM desires that the execution of discharge be held in abeyance by the Commanding Officer pending further observation of the member's conduct (12 months).

860331:  Substance Abuse Report: Marijuana abuse, less than monthly Jan85-Sep85, ashore off duty. Inspection urinalysis Sep85. CAAC found applicant not dependent, amenable and eligible for counseling/education/rehabilitation and recommended Level II treatment. Commanding Officer referred applicant to CAAC, Level II. Comments: HTFR (applicant) exhibits good potential for future naval service, pending completion of CAAC Level II treatment.

860401:  Retention Warning: Advised of deficiency (Positive urinalysis for marijuana 10 September 1985.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860807:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 45 days, reduction to HTFR. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

 Discussion

The applicant was discharged on 860916 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 the applicant’s issue, the Board found 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.

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 . Relief denied.

This review coincides with the expiration of the applicant’s fifteen-year eligibility for NDRB action (16 Sept 2001). As the applicant did not elect to appear before the Board in a personal appearance hearing, as recommended in NDRB letter ND01-00611/HER dated 12 July 2001, this decision exhausts the applicant’s opportunity for review by the NDRB. The applicant remains eligible to appeal for upgrade to the Board for Correction of Naval Records.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective
16 Dec 85 until 05 Oct 86, 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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