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NAVY | DRB | 2001_Navy | ND01-00677
Original file (ND01-00677.rtf) Auto-classification: Denied


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

ex-STG1, USN
Docket No. ND01-00677

Applicant’s Request
The application for discharge review, received 010420, 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. Subsequent to the application, the applicant obtained representation by Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127. 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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I'm requesting my discharge be upgraded to Honorable based on my in-service performance prior to 1994 and my post-service activities.

2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on August 22, 2001 and the following comments are hereby submitted. LTJG W. C_ JAGC, USNR counsel for the respondent stated "The findings of the board was erroneous and unjust and should be invalidated".

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for Clemency due to post service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant dated March 18, 2001
Fifty-five pages from applicant's service record
Copy of DD Form 214 (this enlistment)
Copy of DD Form 214 (831202-880121)
Copy of DD Form 214 (791205-831201)
Letter from Salvation Army, Riverside County, Adult Rehabilitation Center, undated
Character letter from applicant's pastor dated January 23, 2001
Copy of certificate for Employee of the Month dated April 2000
Copy of certificate of completion from the Adult Rehabilitation Center dated June 18, 1997
Copy of certificate of completion of a 10 week parenting class dated June 18, 1997
Copy of certificate of achievement dated March 19, 1997
Copy of custody order - juvenile court papers filed February 6, 1998
Copy of judgment court papers filed September 17, 1997
Copy of Riverside Community College transcript dated January 26, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        791205 - 831201  HON
                  USN                       831202 - 880121  HON
                 USN                       880122 - 931209  HON
         Inactive: USNR (DEP)     791115 - 791204  COG

 Period of Service Under Review :
Date of Enlistment: 931210               Date of Discharge: 941220

 Length of Service (years, months, days):

         Active: 01 00 11
         Inactive: None

 Age at Entry: 31                          Years Contracted: 6

 Education Level: 11 GED                    AFQT: 86

 Highest Rate: STGC(SW)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)    Behavior: 1.00 (2)                OTA: 3.10

Military Decorations: NAM

 Unit/Campaign/Service Awards: GCM (3), BER (2), SSDR (5), MUC, NDSM, KPUC, HSM, AFEM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

940304:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940225, tested positive for methamphetamine.

940317:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940309, tested positive for methamphetamine.

940324:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940317, tested positive for methamphetamine.

940516:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940506, tested positive for methamphetamine.

940531:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940524, tested positive for amphetamine/methamphetamine.

9406??:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 9406??, tested positive for amphetamine. [partially unreadable]

940621:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940614, tested positive for amphetamine/methamphetamine.

940622:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongfully use methamphetamine on 25Feb94.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Reduction to STG1.
         CA 940622: Sentence approved and ordered executed.

940627:  Medical evaluation for drug abuse found the applicant to be drug dependent. Recommend Level III. Refer for detoxification.

940627:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the illegal or wrongful use of a controlled substance - methamphetamine.
940628:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Abuse denied. Random urinalysis 940225. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital.
940630:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940711:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940628, tested positive for amphetamine/methamphetamine.

940719:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940713, tested positive for amphetamine/methamphetamine.

940801:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940722, tested positive for amphetamine/methamphetamine.

 940803:  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.

940808:  BUPERS directed initiate administrative separation processing.

 940922:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

941027:  Chief of Naval Personnel forward recommendation to Principal Deputy Assistant Secretary of the Navy (Manpower and Reserve Affairs) for discharge.

941201:  Principal Deputy Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge.

941207:  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 941220 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’s issue 1 states: “I'm requesting my discharge be upgraded to Honorable based on my in-service performance prior to 1994 and my post-service activities.” The Board carefully considered the applicant’ service, specifically his last enlistment in addition to all supporting documentation provided. The records show the applicant repeatedly tested positive for illegal drugs. The applicant was notified of his rights, his case was reviewed by an Administrative Separation Board and it was determined he committed misconduct due to drug abuse. The Board determined there was no impropriety or inequity in this discharge and the Other Than Honorable characterization accurately reflects his service to his country. The Board determined that the applicant’s post service documentation was not significant enough to overcome his misconduct and dose not warrant a change to his discharge. Relief denied.

The applicant’s issue 2 states: “LTJG W. C_ JAGC, USNR counsel for the respondent stated, "The findings of the board was erroneous and unjust and should be invalidated".” The NDRB found no impropriety or inequity in the discharge. The comments of the respondent’s attorney were submitted to the chain of command, and there is no evidence that these alleged deficiencies were not considered by the chain of command. The record shows the Principal Deputy Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the discharge. Relief based on this issue is not warranted.

The applicant’s issue 3 states: “We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for Clemency due to post service.” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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, may be considered by the NDRB. The Board did not find the post service documentation significant enough to warrant a change in discharge characterization. Specifically, the applicant’s documentation concerning his sobriety indicated that the applicant attended treatment four years ago. This certificate did not demonstrate that the applicant is currently drug free and maintaining a clean and sober lifestyle. Additionally, the applicant’s post service volunteer activities were not significant enough to offset his in-service misconduct. Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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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