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NAVY | DRB | 2001_Navy | ND01-00882
Original file (ND01-00882.rtf) Auto-classification: Denied


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

ex-DPSR, USN
Docket No. ND01-00882

Applicant’s Request
The application for discharge review, received 010625, 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. Code change to RE-1. 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. The applicant failed to respond to the acknowledgement. Subsequent to the application the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020517. 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 reason for 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. (Equity Issue) This former member opines that his characterization of service is too harsh in light of his overall service record and warrants upgrade to honorable. Moreover, he avers that his basis for discharge, misconduct, should be amended to convenience of the government for the same reason.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated June 21, 2001
Eight pages from applicant's service records
Copy of DD Form 214
Copy of Bachelor of Science degree dated December 7, 1999
Copy of certificate
Letter of recommendation dated August 2, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     840424 - 840425  COG

 Period of Service Under Review :
Date of Enlistment: 840426               Date of Discharge: 860627

 Length of Service (years, months, days):

         Active: 02 02 02
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

 Education Level: 15                        AFQT: 93

 Highest Rate: DPSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.67 (3)    Behavior: 2.50 (2)                OTA: 2.50

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 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 :

840427:  Applicant briefed on Navy's policy of drug and alcohol abuse.
860123:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 11Sep85.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to DPSA. Reduction suspended for 6 months. No indication of appeal in the record.
860123:  Retention Warning: Advised of deficiency (You have committed one or more offenses against the Uniform Code of Military Justice (UCMJ), or you have been convicted of (an) offense(s) by a civil court.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860503:  Vacate reduction to DPSA awarded at CO's NJP dated 23Jan86 due to continued misconduct.
860503:  NJP for violation of UCMJ, Article 112A: Marijuana use on 21Jan86.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 60 days, reduction to DPSR. Forfeiture of $100 for 2 months and restriction for 20 days suspended for 6 months. No indication of appeal in the record. [Extracted from CO's message dated 22May86.]
860512:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the wrongful use of marijuana.
860512:  Applicant advised of his rights and having elected not to consult 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.
860514:  Drug and Alcohol Abuse Report: Marijuana abuse, 1 to 3 times per month, 1970 - April 1986, ashore off duty. Urinalysis January 1986. SAC found applicant not dependent and recommend separation. Commanding officer recommended separation, second incident. Comments: SNM being processed for pattern of misconduct-THC abuse. Non dependent, non-amenable to VA.
860522:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

860530:  CNMPC 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 860627 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 states that the discharge awarded was inequitable in that it was too harsh. The applicant was found guilty on two separate occasions of violation of UCMJ Article 112a. These were serious breeches of discipline and according to Navy regulations, require mandatory processing for separation. The applicant was found not dependent on marijuana and was properly processed and separated. The discharge was proper and equitable. Additionally, the applicant request that the basis for discharge be amended to convience of the government. The applicant was found guilty of using illegal drugs on two distinct occasions, which was the basis for his discharge. No other reason more accurately describes the basis for his discharge. To change the reason for discharge to anything else would be inappropriate. Relief is denied.

Issue 2 states that the discharge should be upgraded due to his post service conduct. 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 applicant failed to provide sufficient documentary evidence to warrant an upgrade to his discharge. Relief is not warranted.

In reference to changing the reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel Command, Pers-814, 5720 Integrity Drive, Millington, TN 38055. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is denied.

The applicant is 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 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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