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NAVY | DRB | 2001_Navy | ND01-00907
Original file (ND01-00907.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND01-00907

Applicant’s Request
This application for discharge review, received 010705, requested the characterization of service issued to the Applicant at the time of his discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance before a traveling panel closest to Detroit Michigan. The Applicant listed the American Legion 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.

Decision

A documentary review discharge review was conducted in Washington, D.C. on 19 April 2002. 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. (Equity Issue) Notwithstanding his violations of the UCMJ, this former member opines that his overall service record is sufficient to warrant release under general/ under honorable conditions.

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:
Copy of record of UCMJ
Enlisted Performance record
Enlisted Performance Evaluation Record Pages 1-6
Sworn testimony from OSCS Harry Cannon, USN
Sworn testimony from CWO-3 Kenneth Pintar, USN
Weekly urinalysis report U.S.S. KITTY HAWK CV-63
Sworn testimony OS3 (Applicant)
Comments from LT Chris Morlock, USNR
Letter from Rev. Len Schoenherr, Marshall United Methodist Church dtd 25 Jun 01
Character reference from Sgt Michael Bradley, Deputy Sheriff dtd 28 Jun 28 01
Character reference from Juanita Barker registered nurse dtd 2 Jul 01

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     820816 - 830126  COG

 Period of Service Under Review :
Date of Enlistment: 830127               Date of Discharge: 860707

 Length of Service (years, months, days):

         Active: 03 05 11
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 80

 Highest Rate: OS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.65 (5)    Behavior: 3.50 (5)                OTA: 3.65

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, SSDR with Bronze Star

 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 :

830127:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 860203:  NAVDRUGLAB, San Diego, CA reports Applicant's urine sample, received 860124, tested positive for THC.

860218:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

860219:  NJP for violation of UCMJ, Article 112A: Use of marijuana during the period from 9Jan86 to 23Jan86, violation of UCMJ, Article 92: Fail to obey a lawful order by wearing civilian clothes after privilege was revoked on 15Feb86.
         Award: Forfeiture of $408 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN. Reduction suspended for 6 months. No indication of appeal in the record.
860307:  NAVDRUGLAB, San Diego, CA reports Applicant's urine sample, received 860223, tested positive for THC.
860324:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, Jan86. Search and seizure test Jan86. CAAC found the Applicant not dependent and recommended Level I treatment. Commanding officer recommended retention. Comments: 86 Feb 20 -NJP- VUCMJ Art 112A: Use of marijuana during the period from 09 Jan 86 to 23 Jan86; Art 91: Failure to obey a lawful order by wearing civilian clothes after privileges were revoked on 15 Feb 86 awarded FF $408 ppmX2, 45 days rest/ED, RIR to E-3 (susp x 6 months). Fair potential for further useful service.

860414:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of marijuana during the period of 9 January to 23 January 1986 and wrongful use of marijuana during the period of 21 February to 27 February 1986.
860417:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
860506:  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.

860509:  NJP for violation of UCMJ, Article 121: Larceny of property of a value of about $700.00 on 10Apr86.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN. No indication of appeal in the record. [Extracted from Commanding Officer's letter dated 29May86.]
860529:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer’s comments: OSSN (Applicant) has had two instances of drug abuse resulting in one nonjudicial punishment. He has demonstrated a total disregard for regulations. He has no potential for future naval service. Therefore, I fully concur with the findings and recommendations of the administrative board, and I most strongly recommend that OSSN (Applicant) be separated for his misconduct due to drug abuse with an other than honorable discharge.

860616:  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 860707 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. On 860124, a sample provided by the Applicant for a random urinalysis tested positive for marijuana. Then on 860223 the Applicant provided another sample, which tested positive for marijuana. The Applicant was found to be a drug abuser and not dependent. On 860414, the Applicant was advised of his rights and elected to appear before an Administrative Discharge Board. The Applicant was represented by a member of the Judge Advocate General's Corps. The Board, based upon a preponderance of the evidence and by unanimous vote, found the Applicant had committed misconduct due to drug abuse and the misconduct warranted separation under other than honorable conditions. The Applicant was afforded all of his rights under the applicable rules and regulations.

The Applicant’s performance prior to the drug abuse doesn’t mitigate his use of illegal drugs. The Applicant states he only used marijuana off base and off-duty. The knowing use of marijuana on or off-duty warranted processing for separation, normally under other than honorable conditions. Relief is denied.

 Issue 2. Under most circumstances 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. Relief denied.


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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