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NAVY | DRB | 2001_Navy | ND01-00786
Original file (ND01-00786.rtf) Auto-classification: Denied


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

ex-YNSN, USNR
Docket No. ND01-00786

Applicant’s Request
The application for discharge review, received 010521, 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. Subsequent to the application, the applicant obtained representation by the Vietnam Veterans of America.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214. 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 (verbatim)

1. When the Navy separated me from the service on board the USS CAMDEN (AOE 2), they do not give me any type of treatment and medications from my depression in development.

2. The Navy used a drug inactive reserve offense (11Jun90) and processed me with a CO's NJP on active duty. (They do not read my rights and privileges under the drug and alcohol policy under the inactive reserve service contract.) They do not follow the correct rules and procedures for the drug and alcohol policy (inactive reserve).

3. The Navy do not gave me the opportunity to afford medical psychiatric treatment and medicaments onboard the base on active duty either during my inactive reserve time.

4. All the irregularity and discrepancy in the manner that they handled and filled up all the military documentation in my case. (Same days of the events, omission of the dates, dates changed, not specified important information and others).

5. The chastisement and discrimination that I received onboard the base such as: cancellation of my order (YNC(SW) R_ disobeyed a CO verbal order. I do not have an executive officer inquiry prior to the CO's NJP. Discrimination because I'm Hispanic and black and with English language accent. They conducted to me drugs test every week (just to me only) and others.

6. They waived all my rights & privileges because they used the drug zero tolerance that came out on Sep01, 90 as an automatically separation because I had (1) one drug incident after on 28Nov90.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Statement in support of claim from applicant dated May 14, 2001
Copy of VA Form 10-100 dated March 11, 1991
Chart of the issue
Copy of applicant's resume
Letter from Department of Veterans Affairs re treatment dated June 14, 2001
Copy of police report
Copy of notification of personnel action
Information concerning applicant's post service conduct
Copy of registration statement
Copy of academic record dated October 24, 2000
Coy of letter from Department of Veterans Affairs re work-study program dated January 4, 1994
Statement in support of claim from applicant dated July 30, 2001
Two letters of reference
Letter from Department of Veterans Affairs
One hundred and fifty-four pages from applicant's service record
Statement in support of claim dated April 19, 2001
Statement in support of claim dated March 15, 2001
Statement in support of claim dated April 19, 2001
Statement in support of claim dated April 19, 2001
Statement in support of claim dated April 19, 2001 (2 pages)
Statement in support of claim dated April 19, 2001
Statement in support of claim dated April 19, 2001
Statement in support of claim dated April 20, 2001
Statement in support of claim dated April 20, 2001
Statement in support of claim dated May 3, 2001
Statement in support of claim dated April 23, 2001 (4 pages)
Statement in support of claim dated April 23, 2001 (6 pages)
Statement in support of claim dated April 25, 2001 (2 pages)
Statement in support of claim dated April 24, 2001 (3 pages)
Statement in support of claim dated May 3, 2001
Statement in support of claim dated April 25, 2001 (3 pages)
Statement in support of claim dated April 26, 2001
Statement in support of claim dated May 3, 2001 (5 pages
Statement in support of claim dated May 4, 2001 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        851104 - 891103  HON
         Inactive: USNR (DEP)     850812 - 851103  COG

 Period of Service Under Review :
Date of Enlistment: 900618               Date of Discharge: 910312

 Length of Service (years, months, days):

         Active: 00 08 25
         Inactive: None

 Age at Entry: 29                          Years Contracted: 6

 Education Level: 14                        AFQT: 36

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (1)              Behavior: 2.8 (1)                 OTA: 3.0 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR with Bronze Star, GCM, AFEM, MUC

 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 :

900708:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substances, to wit: cocaine.
         Award: Forfeiture of $481 per month for 2 months, extra duty for 45 days, reduction to YNSN. Forfeiture suspended for 6 months. No indication of appeal in the record.
900708:  Medical evaluation for drug abuse found the applicant to be a drug abuser,
not drug dependent.

 901128:  NAVDRUBLAB, Norfolk, VA reports applicant's urine sample, received 901114 tested positive for cocaine.
901128:  UCMJ held on 90Jul08 affecting reduction to pay of YNSN is set aside.

 901218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for cocaine, conducted on or about 4 November 1990.
901218:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. Applicant waived all rights. Board was convened by CO even though applicant did not elect an administrative board.
901221:  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.

901231:  Original sample of urine retested. Confirmation results: positive for cocaine.
910102:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

910117:  Applicant found alcohol dependent and recommended for psychiatric therapy.

910205:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

910211:          Applicant offered VA inpatient medical services.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910312 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).

Issues 1 and 3. The applicant’s assertion that lack of medical care received while in the Navy may have contributed to his subsequent misconduct is not an issue upon which the NDRB can grant relief. Relief is therefore denied on these issues.

Issue 2. The Board found that the applicant’s NJP received on 900708 did not form the basis for the applicant’s discharge. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case, the Board found that the applicant’s discharge was proper and equitable whether or not he had received NJP earlier for illegal drug use. Relief denied.

Issues 4 and 5. The Board considered the evidence of irregularities and discrimination presented by the applicant. The Board did not find this evidence to be sufficient to overturn the presumption of regularity in the conduct of governmental affairs. Relief denied.

Issue 6. The Board found that the applicant waived his rights to counsel prior to his administrative discharge board. The Board found no evidence that the applicant was not responsible for his actions. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.

 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 relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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 denied.



Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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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