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NAVY | DRB | 2001_Navy | ND01-00891
Original file (ND01-00891.rtf) Auto-classification: Denied


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


ex-SR, USNR(TAR)
Docket No. ND01-00891

Applicant’s Request
The application for discharge review, received 010628, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020321. After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that relief was warranted. The Board voted four to one to change the discharge to: UNDER HONORABLE CONDITIONS (GENERAL)/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620. The dissenting member voted to upgrade the discharge to honorable conditions.

A personal appearance discharge review was conducted in Washington, D.C. on XXXXXX. 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.
If appropriate add the following:
 The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.






THIS IS THE CORRECT SHELL FOR Misconduct - Drug abuse (Use) effective 870615 - 890110 .

THE FINDING FOR Drug abuse, 3630620) IS EFFECTIVE FOR 870615 - 890110 ONLY.

SPN CODE HKK. THE SPN CODE IS EFFECTIVE 860911 - 930627.

 A general discharge is written “UNDER HONORABLE CONDITIONS (GENERAL) ”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1.       This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to honorable as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Copy of Certificate of Appreciation dated May 30, 2001
 American Legion statement of issues
 Letter from applicant, 020205
Teen Challenge completion certificate, 950825
 Reading instructor certificate, 950825
 Staff of the month award, January 1998
Letters of appreciation (9 pp.)
 Article on Teen Challenge program
Food service sanitation certification
Character references (5 pp.)
Certificate of recognition, 011206

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None
Period of Service Under Review :
Date of Enlistment: 870206               Date of Discharge: 880122

 Length of Service (years, months, days):
         Active: 00 11 17
          Inactive: None
Age at Entry: 24                          Years Contracted: 8

 Education Level: 12                        AFQT: 67
Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.60 (1)    Behavior: 2.70 (2)                OTA: 2.80

 Military Decorations: None
Unit/Campaign/Service Awards: None

 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 :

871120:  DAPA counseling: Applicant interviewed in regards to his testing positive for cocaine. During the course of the interview applicant admitted prior service use of cocaine and self committed rehabilitation treatment in December 1986.
871123:  Medical evaluation for alcohol and drug abuse found the applicant to be physiologically and psychologically dependent on alcohol and does require detoxification. Referral to Portsmouth Naval Hospital.

871125:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 20Oct87.
         Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 30 days, reduction to SA. No indication of appeal in the record.
871217:  NJP for violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $100 per month for 1 month, restriction for 30 days, extra duty for 10 days. Forfeiture, restriction for 20 days, and extra duty for 5 days suspended for 6 months. No indication of appeal in the record.
871218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the naval service and misconduct due to drug abuse.
871218:  Applicant advised of his rights and having elected not to consult 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.
871222:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly 19Oct87-20Oct87, ashore off duty. Medical officer determined applicant is not dependent and recommend separate. Self-referral/disclosure 20Oct87. Commanding officer recommend separate.
871223:  Commanding officer recommended discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the naval service and misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): The mission of this command is cargo handling - at any time and under any condition. Cargo handling is a very hazardous profession and individuals need to fully alert at all times in order to avoid injury to themselves and others on the job site. Wrongful use or possession of controlled substances is not allowed. Announcements in the plan of the day and at captain's call stress this policy and clearly state that offenders will be strongly prosecuted. While investigating circumstances surrounding SR (applicant's) substance use charge SR (applicant) admitted to use prior to entry into the service and that he did not report its use as indicated in his application for enlistment (DD 1966). SR (applicant) offers little or no further service to the Navy. Additionally, he would be a further administrative burden to this and any other command. During the preparation of this message SR (applicant) was involved in a fight in the barracks and was UA from his restriction in excess of 12 hours. This command does not have the manpower nor the facilities to continually watch this man. Therefore, I strongly recommend that he be administratively separated from the naval service as soon as possible.
880112:  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 880122 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) at the time of discharge. However, the applicant’s post service accomplishments and good citizenship were of such magnitude that the Board determined partial relief was warranted.
Issue 1. The Board determined the applicant’s post-service conduct has been sufficiently creditable to warrant an upgrade to his characterization of service to Under Honorable Conditions (General). The applicant was able to demonstrate that although he was a drug abuser, his perseverance to rehabilitate himself and then dedicate his time to helping others that suffer from drug addiction was commendable. His association with Teen Challenge began when he was a drug addict trying to break his drug habit. Once he was drug free he later began volunteering for Teen Challenge as an advisor to other youths in the program that needed rehabilitation help. This position turned into a paid position because of his selfless dedication. The applicant lives on property owned by the Teen Challenge program and is on call seven days a week, 24 hours a day as the lead advisor. The Board did not find that the applicant’s post-service accomplishments sufficiently mitigated the seriousness of his misconduct while on active duty to warrant an upgrade of his discharge to Honorable. Partial relief is therefore granted.
Pertinent Regulation/Law (at time of discharge)
A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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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