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NAVY | DRB | 2001_Navy | ND01-00649
Original file (ND01-00649.rtf) Auto-classification: Denied


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



ex-AR, USN
Docket No. ND01-00649

Applicant’s Request
The application for discharge review, received 010416, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 020425. After a thorough review of the records, supporting documents, facts, testimony, and circumstances unique to this case, the NDRB discerned at the time of discharge there was no impropriety or inequity in the characterization of the applicant’s service. However, after considering the applicant’s positive post service conduct in addition to the applicant’s official records and accompanying documents the Board determined the discharge is inequitable. The Board’s vote was three to two that the character of the discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. The punishment I received (Other Than Honorable Discharge) was to severe, I realize that I should have been punished, but not with O.T.H.

2. I am enclosing copies of letters from individuals that have known me while I was in the navy, plus from date of discharge. I am requesting that my service record as well as these letters be taken into consideration in the review of my Other Than Honorable Discharge.

3. I am enclosing character letters from some of my employers show my good work record. I have also enclosed a criminal background check as well as some of the drug screenings I have taken while employed since being discharged.

4. This is a personal reflection on my mistake and myself.

I was 19 years old and on leave from ship. I attended a party, where I was drinking and I smoked some marijuana from a cigarette. What I didn't stop to think about was how that 5 minutes would affect the rest of my life.

Since I was discharge I have had numerous occasions upon which my discharge has affected me. I know I have been turned down for jobs because of this. People see other than honorable and get the wrong impression. It does not help matters when I tell them it was for the use of marijuana.

I have been drug free since my discharge. My life has taken many turns for the good and bad. I have been married since May 2, 1992 and have 2 daughters. I am the soul supporter of my family. There have been many times that I had at least two jobs to make ends meat. I feel proud of what I do for my family and the way my life has turned out.

If there is one thing I could change it would be my discharge. I have thought about what I could have done differently. I would do about anything to change this other than honorable discharge. I let myself, and the U.S. Navy down and I am sorry for this.

I know the Navy did what it felt was the right thing to do at the time. I just wish I could have been given a second chance to show I was worthy of it.

If given an upgrade, my future goal would be to try and get into a reserve unit. I would like to serve my country the way I set out to do the first time.


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Criminal Record Check Pennsylvania State Police dtd 010129
Urinalysis Report from Omega Medical Laboratories
Drug Testing Result from Shippensburg Family Practice (2pgs)
Copy of DD Form 214
Copy of Memorandum for Outstanding Performance
Reference Letter from Pastor G___ B____
Personal Reference Letter from D___ G. S___
Employment Reference Letter from President of MFG Manufacturing, Inc D___ D. F____
Employment Reference Letter from F___ L. Z____
Letter of Recommendation from R___ H. S____
Pre-Employment Medical/Drug Testing Letter from The General Casting CO
Copies of Employee Evaluations (9pgs)
Copy of Medical Examination (3pgs)
Copy of Radiologist Report (2pgs)
Copy of Pre-Employment Medical Exam
Letter from Applicant
Information from Applicant
Copy of DD Form 214
Drug Test results from DRUGSCAN dtd 010201

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     870128 - 870804  COG

 Period of Service Under Review :
Date of Enlistment: 870805               Date of Discharge: 881228

 Length of Service (years, months, days):

         Active: 01 04 23
         Inactive: None

 Age at Entry: 18                          Years Contracted:

Education Level: 12                        AFQT: 42

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)    Behavior: 2.80 (0)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 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 :

881130:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana, a schedule I controlled substance while onboard a vessel on or about 881115.
         Award: Forfeiture of $335.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
881130:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
881130:  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 and the right to submit statements in own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.

881201:  Medical officer's evaluation for drug abuse found the applicant to be not drug dependent/alcohol dependent. Medical Officer's comments: Pt admits to post use of marijuana (occasional use while in high school) and single episode while in U.S.N. recently while on liberty while under the influence of ETOH. No other drug use.
881206:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881216:  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 881228 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, testimony, and circumstances unique to this case, the Board found that at the time of discharge, the characterization of the applicant’s service was proper and equitable (C and D). However, after careful review of the applicant’s testimony, review of post service documentation and the applicant’s official records, the Board determined that relief is warranted (D).

 Issue 1. The applicant states that the discharge was too severe. The Board disagrees. The applicant was aware of the Navy’s policy against the use of illegal drugs, was advised of the consequences of illegal drug use and chose to use illegal drugs while on active duty. The applicant was afforded his due process rights throughout the discharge proceedings. Use of illegal drugs requires mandatory processing for separation, according to Navy regulations, normally under other than Honorable conditions. Drug abuse is punishable by court martial, with awarding of a punitive discharge. Relief based on this issue is denied.

Issues 2, 3 and 4. The applicant describes the circumstances surrounding his discharge and states that since his discharge he has been drug free and a productive member of society. The Board agrees that the applicant has shown a dramatic, consistent, positive change in his behavior since discharge. His documentation details a drug free lifestyle, including drug testing, continuous employment, and volunteer community service. The applicant’s testimony was supported by testimony from two character witnesses. The applicant demonstrated through his documentation and testimony that an equitable recharacterization of his discharge is warranted to Under Honorable Conditions (General). Relief is warranted.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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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