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NAVY | DRB | 2001_Navy | ND01-00738
Original file (ND01-00738.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND01-00738

Applicant’s Request
The application for discharge review, received 010504, 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 to the applicant, he 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 the Washington D.C. area. Subsequent to the application, the applicant converted the case to a personal appearance hearing and obtained representation by the Veterans of Foreign Wars. Applicant failed to appear for the scheduled personal appearance discharge hearing and therefore a documentary discharge review was conducted. The applicant is not eligible for further review by the Naval Discharge Review Board (NDRB).

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 HONORABLE


CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Dear sirs,
I cast no blame for the event which led to my "general Discharge" from the navy in November 86. I was much younger and immature individual and am totally sorry for the mockery I made of my enlistment. I will not attempt to mollify the board with idle, apologetic banter for my grief is maximum knowing that my mistakes are affecting my children. I ask you today not for me but for my children, who will have a better chance at life with their dad having an honorable discharge. With whatever benefits it will give them. Please sir's reconsider

2. Upgrade to Honorable - The VFW as council reviewed entire applicant's record. Applicant He would like to upgrade discharge for his children’s benefit. He provided letters of character references. This proved applicant was gainfully employed and contributed to the community. We ask for consideration of SECNAVINST 5420.174C 22Aug84 9.3 (1) (J), 1.12 clemency discharge vs misconduct, due to the applicant's post service and has fully earned his return to the Mainstream of American Society in accordance with that program. During this review it was noted the applicant had sought and asked for help while on active duty. “I would greatly accept any help that would be presented to me to square myself away and get back on the right track.” This is a part of his official file. We contend the applicant has made a positive change in his life.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (currently enlistment)
Copy of DD Form 214 (previous enlistment)
Character reference, undated
Character reference dated April 24, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        790108 - 830207  HON
                  USN                       830208 - 841213  HON
         Inactive: USNR (DEP)     790105 - 790107  COG

 Period of Service Under Review :
Date of Enlistment: 841214               Date of Discharge: 861107

 Length of Service (years, months, days):

         Active: 01 10 24
         Inactive: None

 Age at Entry: 24                          Years Contracted: 3

 Education Level: 12                        AFQT: 55

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.30 (4)    Behavior: 3.20 (4)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM, NER, SSDR

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

841214:  Applicant reenlisted for 3 years.

 860321:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample tested positive for THC.
860402:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana between 4Mar86 and 14Mar86.
         Award: Extra duty for 45 days, reduction to BMSN. No indication of appeal in the record.
860507:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the result of a unit sweep urinalysis screening conducted on 13 March 1986 which resulted in a positive THC finding.
860513:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
860627:  CAAC evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

860716:  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 honorable conditions (general).

860812:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

861031:  CNMPC directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 861107 under honorable conditions (general) 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 on 020312. The applicant failed to appear or notify the Board of extenuating circumstances that may have precluded his appearance. Accordingly, the Board conducted a documentary review with consent from the applicant’s representative.

 Issue 1. The applicant’s letter (issue) expresses regret for his misconduct and requests a change in his discharge in order to secure benefits for his children. The Board is under no obligation and will not upgrade an individual’s discharge for the purpose of securing veteran’s benefits. 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 and regret and remorse are not reasons that the NDRB will grant relief. The Board reviews the records of former service members to determine if the discharge procedures were executed in accordance with Navy regulations and that the discharge characterization assigned was proper and equitable. The Board determined the discharge was proper and equitable. Relief is denied.

Issue 2. The applicant’s second issue, provided by the VFW, requests clemency based on his positive community service. The Board carefully considered the applicant’s two character references provided and determined the documentation provided was insufficient to warrant an upgrade to the applicant’s 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 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. The applicant did not provide any of these documents. Relief is denied.

Issue 3. The third issue claims that the discharge should change because the applicant asked for help while on active duty. The Board found the applicant was evaluated by CAAC for his drug use and found not dependant. Therefore, the Navy was not required to offer or provide the applicant rehabilitation treatment. The issue stating that the applicant sought help and was not afforded rehabilitation treatment has no merit. 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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