Search Decisions

Decision Text

NAVY | DRB | 2001_Navy | ND01-00759
Original file (ND01-00759.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND01-00759

Applicant’s Request
The application for discharge review, received 010514, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130. 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. My discharge was improper because at the time of infraction, I was attending family counseling. I was going through a separation with my wife. I also had less than five months before, E.A.O.S. I had just come back from desert storm. I respectfully request a General Discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
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)     880810 - 880824  COG

 Period of Service Under Review :
Date of Enlistment: 880825               Date of Discharge: 920319

 Length of Service (years, months, days):

         Active: 03 06 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 30

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.48 (5)    Behavior: 2.60 (5)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDM, SASMw2b*, SSDR (2 ND )

 Days of Unauthorized Absence: 5

 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 :

890223:  NJP for violation of UCMJ, Article 116: Breach of peace to wit: wrongfully engaging in bottle throwing.
         Award: Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.

891019:  NJP for violation of UCM, Article 86: UA from 891010-891012 [5days/S]
         Award: Restriction and extra duty for 5 days. No indication of appeal in record.
910108:  NAVDRUGLAB NORFOLK, VA urinalysis report indicates applicant tested positive for cocaine.

910201:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance as evidenced by testing positive for cocaine during a unit sweep urinalysis conducted 901211 and confirmed by NAVDRUGLAB NORFOLK VA 080452Z.
         Award: Forfeiture of $400.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

910301:  DAAR indicates cocaine abuse as a result of a unit sweep urinalysis, found not dependent, recommended for Level I Treatment.

910321:  Medical evaluation for drug and alcohol abuse found the applicant to be not psychologically or physiologically dependent on drugs or alcohol.

911121:  Medical evaluation indicates applicant is an occasional drug and alcohol abuser, recommended for Level II Treatment.

911206:  Retention Warning: Advised of deficiency (Violation of Article 116 of the UCMJ - Breach of Peace, Violation of Article 112a of the UCMJ - Wrongful use of a controlled substance. Violation of Article 86 of the UCMJ - Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920103:  NJP for violation of UCMJ, Article 112: Drunk on duty; violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

920116:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine).
         Award: Forfeiture of $375.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
920117:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by five non-judicial punishments under the UCMJ and the illegal or wrongful use or possession of a controlled substance in your current enlistment.

920122:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
920228:  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.

920306:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the illegal or wrongful use or possession of a controlled substance within current enlistment.

920318:  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 920319 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).

Issue 1. The applicant states his discharge was improper because he was attending family counseling at the time of his infraction and had less than five months before his EAOS. The record shows, the applicant’s misconduct began in February 1989 with an NJP for violation of UCMJ, Article 116. He received two additional NJPs for unauthorized absence and wrongful use of illegal drugs. The applicant’s command had the authority to discharge at this point in his career but gave the applicant a retention warning and an opportunity to correct his behavior. The applicant’s misconduct continued with two additional NJPs in January 1992 and then he was discharged. The Board determined the fact that the applicant was attending family counseling was irrelevant. Use of illegal drugs is unacceptable behavior. The applicant displayed no regard for the Navy’s policy against the use of illegal drugs. In regards to the applicant being discharged 5 months before his EAOS, his misconduct began 6 months after his enlistment (3.5 years before his EAOS). Since he was discharged in advance of his EAOS the Board determined the discharge was proper.

 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. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.
Relief is denied.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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


Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-01108

    Original file (ND99-01108.rtf) Auto-classification: Denied

    In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. Decision A documentary discharge review was conducted in Washington, D.C. on 000427. At this time, the Board feels the applicant has not provided sufficient documentation of good character and conduct.

  • NAVY | DRB | 1999_Navy | ND99-01043

    Original file (ND99-01043.rtf) Auto-classification: Denied

    Treatment recommendation - CAAC out-patient treatment program (Level II) and AA meetings two times weekly.920123: NAVDRUGLAB, GLakes, IL: Urinalysis sample taken on 09Jan92, received by lab on 14Jan92, applicant positive for cocaine/marijuana.920206: NJP for violation of UCMJ, Article 112a(2 specs) wrongful use of cocaine on or about 06DEC91 to 06Jan92 and wrongful use of marijuana on or about 06DEC91 to 06Jan92.Award: Forfeiture of $457.50 per month for 2 months (1 months suspended for six...

  • NAVY | DRB | 2001_Navy | ND01-00362

    Original file (ND01-00362.rtf) Auto-classification: Denied

    ND01-00362 Applicant’s Request The application for discharge review, received 010129, requested that the characterization of service on the discharge be changed to honorable. Commanding officer’s comments: (verbatim): YNSA (applicant) reported to THEODORE ROOSEVELT in August 1986. I recommend that he be discharged as soon as possible, with an other than honorable discharge.861217: CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to...

  • NAVY | DRB | 2001_Navy | ND01-00595

    Original file (ND01-00595.rtf) Auto-classification: Denied

    ND01-00595 Applicant’s Request The application for discharge review, received 010402, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Administrative Discharge Board found the applicant did commit a violation of UCMJ Article 112a but recommended retention due to the applicant’s service record. At this time, the applicant has not provided any documentation of good post-service character and conduct.

  • NAVY | DRB | 2000_Navy | ND00-00847

    Original file (ND00-00847.rtf) Auto-classification: Denied

    This FSM had four (4) years of good Honorable service and should have been provide with the opportunity to rehabilitate and continue his military service in an honorable manner. 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 the applicant’s issue 1, the Board At this time, the applicant has not provided any documentation of good character and conduct.

  • NAVY | DRB | 2005_Navy | ND0500831

    Original file (ND0500831.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 890106: NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, December 30, 1988 to 2155, December 31, 1988. The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.

  • NAVY | DRB | 2004_Navy | ND04-01335

    Original file (ND04-01335.rtf) Auto-classification: Denied

    ND04-01335 Applicant’s Request The application for discharge review was received on 20040824. The Applicant informed the Board to continue with the record review. Decision A documentary discharge review was conducted in Washington, D.C. on 20041122.

  • NAVY | DRB | 2001_Navy | ND01-00165

    Original file (ND01-00165.rtf) Auto-classification: Denied

    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. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Letter from applicant's parents, dated November 14, 2000 Copy of DD Form 214 Letter from applicant's parents, dated January 9, 2001 PART II - SUMMARY OF SERVICE...

  • NAVY | DRB | 1999_Navy | ND99-00564

    Original file (ND99-00564.rtf) Auto-classification: Denied

    ND99-00564 Applicant’s Request The application for discharge review, received 990316, requested that the characterization of service on the discharge be changed to honorable. 930315: Applicant informed of right to inpatient treatment and signs statement declining treatment.930330: Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).930427: BUPERS directed the applicant's discharge under other than honorable...

  • NAVY | DRB | 2004_Navy | ND04-00243

    Original file (ND04-00243.rtf) Auto-classification: Denied

    I love my country and would gladly serve again if I could. I strongly recommend that he be discharged from the Navy and that the characterization of his discharge be other than honorable.900105: CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract...