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NAVY | DRB | 2001_Navy | ND01-00612
Original file (ND01-00612.rtf) Auto-classification: Denied


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



ex-SWCA, USN
Docket No. ND01-00612

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 personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed American Legion as the representative on the DD Form 293. The applicant failed to appear on the scheduled date 020408, and with the representative’s consent, the NDRB converted the case to a documentary review.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 020419. 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

 1. State of mind during this period of my life.

2. Family man trying to teach children right from wrong.

3. Born again Christian know drugs and alcohol are wrong and illegal. Should not be punished for life for things done as a kid.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant
Employment Reference Letter
Police Record Release Form
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     821027 - 830614  COG

 Period of Service Under Review :
Date of Enlistment: 830615               Date of Discharge: 860703

 Length of Service (years, months, days):

         Active: 03 00 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 58

 Highest Rate: SWCN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.55 (4)    Behavior: 3.55 (4)                OTA: 3.45

 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 :

831014:  Retention Warning: Advised of deficiency (Your misconduct of a discreditable nature, with either civilian or military authorities), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

831014:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92: Violation of a written order or regulation.
         Award: Forfeiture of $150.00 per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
860605:  NJP for violation of UCMJ, Article 112a: Use a controlled substance, to wit: marijuana on or about 860513.
Award: Forfeiture of $225.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
860610:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

860611:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
860611:  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.
860623:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

860630:  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 860703 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).

The applicant was scheduled for a personal appearance hearing in Washington, DC on 020408. The applicant failed to appear or contact the Board concerning his inability to appear. Accordingly, the documentary review was conducted with the consent of the applicant’s representative.

 Issue 1. The applicant’s first issue states: “State of mind during this period of my life.” The NDRB considers this issue non-decisional. The applicant’s medical record is devoid on mitigating medical documentation that would support the applicant suffered from some sort of mental disorder that contributed to his misconduct. Additionally, the applicant provided no documentary evidence to support this issue and it’s relevance in his discharge. Relief is denied.

Issue 2. The applicant’s second issue states: “Family man trying to teach children right from wrong.” The applicant failed to provide documentation to support this issue it’s relevance in his discharge. The Board reviews the records of former service members to determine if discharge procedures were followed in accordance with Navy regulations and that the discharge characterization assigned was proper and equitable. The Board determined the applicant’s discharge was proper and equitable. Relief is denied.

Issue 3. The applicant’s third issue claims he has learned from his mistakes and should not be punished for his previous mistakes. The applicant failed to substantiate his claim with documentation that shows he no longer uses drugs. The Other Than Honorable discharge accurately characterizes the applicant’s service to his country. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. Since applicant failed to appear for his personal appearance hearing, he is no longer eligible for further review by this Board. Relief is denied.

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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