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NAVY | DRB | 2001_Navy | ND01-00919
Original file (ND01-00919.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND01-00919

Applicant’s Request
The application for discharge review, received 010709, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130. 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) This former member requests that the Board apply 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:
Letter from applicant dated July 3, 2001
Copy of Employee of the Month plaque dated December 1998
Character reference, undated
Character reference, undated
Police record check dated July 3, 2001
Original and copy of community college transcripts
Copy of plaque presented by Red Cross for service/support dated October 12, 1998
Letter from Boy Scouts of America dated February 5, 2001
Letter of appreciation from training/donation from Southern Nevada Correctional Center dated December 4, 1997
Training certificate: Advanced Driver Training dated October 3, 2000
Training certificate: CCFD Driver/Operator Academy dated June 20, 2000
Emergency Medical Technician Intermediate certification 03/99 - 03/01
Emergency Medical Technician Intermediate certificate 04/97 - 03/99
Training certificate: Peer support dated November 3 - 6, 1997
Training certificate: Violence in the workplace dated August 15 - 16, 1998
Training certificate: Group Wise 4.1 to 5.2 Upgrade dated February 4, 1999
Letter of appreciation from the Clark Country Firefighters Burn Fund dated December 11, 2000
Professionals and Youth Building a Commitment (PAYBAC) - a program designed to convince at risk children to stay in school) Lied Middle School, November 23, 1999
PAYBAC - Duane Keller Middle School dated January 28, 2000
PAYBAC - Orr Middle School dated December 13, 1995
PAYBAC - Brinley Middle School dated April 13, 2000
PAYBAC - Lied Middle School, June 22, 1999
PAYBAC - Ed Von Tobel Middle School dated February 22, 1999
Letter of appreciation from Elections Department dated November 10, 1998
Letter of appreciation from Elections Department dated July 5, 1999
Letter of appreciation from Elections Department dated November 27, 2000
Certificate Exceptional Performance: Elections Department November 3, 1998
Certificate Exceptional Performance II: Elections Department May 4, 1999 and June 8, 1999
Certificate Outstanding Performance: Elections Department September 5, 2000 and November 7, 2000
Training certificate: Wild Land Firefighter dated 14, 15, and 16 April 1992
Certificate of Achievement: State Certified Firefighter I dated April 17, 1992
Certificate of Achievement: Clark County Fire Department Recruit Training Academy May 8, 1992
Emergency Medical Technician certification July 6, 1992 through March 31, 1994
Certificate of Completion: First Responder dated October 15, 1990 to October 19, 1990
Certificate, Palm Beach County Vocational - Technical School - Firefighting dated December 11, 1990
Copy of certificate from Nevada State Fire Marshall certifying applicant as Fire Officer I dated June 4, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     860530 - 860618  COG

 Period of Service Under Review :
Date of Enlistment: 860619               Date of Discharge: 891109

 Length of Service (years, months, days):

         Active: 03 04 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 13                        AFQT: 98

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (4)    Behavior: 2.95 (4)                OTA: 3.15

 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 :

860624:  Applicant briefed on Navy's policy on drug and alcohol abuse.

861022:  NJP for violation of UCMJ, Article 92: Fail to obey a lawful order by wrongfully possessing alcohol in barracks on 20Oct86.
         Award: Restriction for 7 days. No indication of appeal in the record.
870325:  NJP for violation of UCMJ, Article 92: Reporting to EMI without proper uniform on 7Mar87.
         Award: Restriction for 10 days. No indication of appeal in the record.
870325:  Retention Warning: Advised of deficiency (Failure to follow/obey the orders of superiors.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870403:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence on 0700 to 0701, 27Mar87, (2) Unauthorized absence 1700-1712, 27Mar87, (3) Unauthorized absence 0700 to 0704, 1Apr87, violation of UCMJ, Article 92 (2 specs): Failed to obey lawful order by copying another students homework on 30Mar87, (2) Disobeyed lawful order by not completing homework on 30Mar87.
         Award: Forfeiture of $200 per month for 2 months, reduction to MMFN. No indication of appeal in the record.
870403:  Retention Warning: Advised of deficiency (Failure to be at assigned places at assigned times. Failure to follow the orders of those appointed over you. Failure to follow the rules and regulations of the U.S. Navy.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871113:  NJP for violation of UCMJ, Article 86: Unauthorized absence 1900-2340, 9Nov87.
         Award: Forfeiture of $383 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
871209:  Retention Warning: Advised of deficiency (An established pattern of misconduct consisting of unauthorized absence and failure to obey orders.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880331:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Failure to go to place of duty to wit: DC training, (2) Going from place of duty to wit: U/I messenger, violation of UCMJ, Article 90: Willful disobedience of superior commissioned officer to wit: fail to attend DC training.
         Award: Forfeiture of $376 per month for 1 month, restriction and extra duty for 10 days, reduction to FN. Reduction suspended for 90 days. No indication of appeal in the record.
880414:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from men's muster 1700, 31Mar88, (2) Unauthorized absence from men's muster 2130, 31Mar88, (3) Unauthorized absence from men's muster 0615, 8Apr88.
         Award: Restriction and extra duty for 5 days. No indication of appeal in the record.
880426:  Retention Warning: Advised of deficiency (Overall unsatisfactory military bearing as evidenced by six CO's nonjudicial punishments in your career.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880820:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Impersonating a petty officer, (2) Wrongful possession of unauthorized military identification card.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
890311:  NJP for violation of UCMJ, Article 110: Improper hazarding of vessel.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
890918:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample, received 890906, tested positive for cocaine.
890920:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance, random sweep urinalysis conducted 30Aug89 and confirmed by NAVDRUGLAB Norfolk, VA 1080850Z Sep 89.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.
891010:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

891109:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty. Random urinalysis 890830. CAAC and physician found applicant not dependent and recommended separate. Commanding officer recommended separate. Comments: MMFA (applicant's) work performance has been generally good. However he has proven through numerous infractions of the UCMJ, culminating in drug abuse that he has no potential for further misconduct.

890926:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by testing positive for cocaine during a random sample urinalysis conducted on 30 August 1989 and confirmed by NAVDRUGLAB NORFOLK, VA 180850Z Sep 89.
890926:  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.
891027:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

891103:  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 891109 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).

The NDRB reviewed the applicant’s service record and found the applicant had nine NJP’s in his enlistment. The Board found no impropriety or inequity in the discharge.

The applicant’s issue states: “(Equity Issue) This former member requests that the Board apply provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.” The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. There is no law or regulation allows an unfavorable discharge to 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 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. Although the applicant provided a significant amount of post service documentation, the Board did not find it sufficient to warant upgrading his discharge, as described in SECNAVINST 5420.174C, enclosure 1, Chapter 9. The Board found the applicant’s service was properly and equitably characterized. Relief is denied.

The applicant remains 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 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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