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NAVY | DRB | 2001_Navy | ND01-00788
Original file (ND01-00788.rtf) Auto-classification: Denied


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

ex-HTFA, USN
Docket No. ND01-00788

Applicant’s Request
The application for discharge review, received 010521, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government. The applicant requested a personal appearance hearing before a traveling panel closest to Fresno, California. The applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328. 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 and narrative reason 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. I feel that I do not deserve to have this "Other Than Honorable Discharge" stigma for the rest of my life. Yes, I did make a mistake in anger when I stated that I used cocaine in the Navy as a reason to be discharged. As you can see by the enclosed reference letters I am a productive citizen and I am doing everything that I can to become the best person that I can be and be the best provider that I can be for my family. I sincerely regret losing my temper and saying that I used cocaine when I did not I honestly believe that up to the time of this incident, I was an exceptional sailor and that my overall Naval record was very good. I was a an excellent welder and always worked hard and did the best that I could. I feel that this work record should weigh heavily in my favor. I sincerely enjoyed the Navy and had serious thoughts of becoming a career sailor. I am drug free and only drink on special social occasions. I mainly just work and provide for my family. I am very family oriented. I do thank the Navy for the education that they gave me. If things work out, I certainly would consider re-enlisting.

2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the FSM's request as follows:

Respectfully, FSM request a discharge upgrade from his current status of Other Than Honorable to one of Honorable with a change in the narrative to read for the conveyance of the government.

FSM joined the United States Navy in January of 1990. His service can be characterized as outstanding as demonstrated by his proficiency and conduct evaluations. While in service FSM received the National Defense Service Medal.

In 1992, FSM, through his own accord, admitted to the wrongful use of cocaine. In conjunction with his honesty he was admitted into a drug rehabilitation program. Upon successful completion of the program FSM was not given an Administrative Board, instead he received an Other Than Honorable Discharge.

Since discharge FSM has been a pillar of his community, which is attested to by the multiple letters of character references provided. He remains drug free, is family oriented and has obtained gainful employment.

It is our contention, as his service representatives, that FSM admitted to his error in judgment and has continued to live a life free of repeating the same error. In light of this new evidence we respectfully request that FSM's discharge be upgraded to the Honorable status with the fore mentioned narrative change.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
DAV letter, 020220
Letters from applicant, 020323 and 010416
Character reference letters (x6)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900104 - 900117  COG

 Period of Service Under Review :
Date of Enlistment: 900118               Date of Discharge: 920527

 Length of Service (years, months, days):

         Active: 02 04 10
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: HTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (2)    Behavior: 3.20 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

920123:  NJP for violation of UCMJ, Article 112A (3 specs): Wrongful use of a controlled substance January 1991, March or May 1991 and May 10, 1991, to wit: cocaine.
         Award: Forfeiture of $482.70 per month for 2 months, restriction for 45 days, reduction to HTFA. No indication of appeal in the record.
920128:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your own admission of the use of cocaine on three separate occasions.
920128:  Applicant advised of his rights and having consulted 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.
920204:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

920205:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly Method of identification: Military police on 911213. Physician found the applicant not dependent and recommended separation. Commanding officer recommended separation. Comments: This DAAR is submitted as an amended report. HTFA (applicant) was evaluated by naval hospital Long Beach Alcohol Rehabilitation Department on 4 February 1992. The medical officer diagnosed SNM as non dependent and recommended administrative separation if member possesses no potential for further service or Navy Alcohol Drug Safety Action Program if retained. HTFA (applicant) was evaluated by his supervisor as a below average performer. IAW OPNAVINST 5350.4B Matrix Delta SNM possesses no potential for further naval service and is being processed for administrative separation.

920420:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920513:  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 920527 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 Board found no credible evidence to refute the official record of the applicant’s illegal drug use. The applicant admitted to using illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. The discharge was proper and equitable. Relief denied.

Issue 2. The applicant’s performance prior to or after the drug abuse doesn’t mitigate his use of illegal drugs. The discharge was proper and equitable. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 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 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

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