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NAVY | DRB | 2001_Navy | ND01-00926
Original file (ND01-00926.rtf) Auto-classification: Denied


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


ex-BM1, USNR
Docket No. ND01-00926

Applicant’s Request
The application for discharge review, received 010712, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. 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 HONORABLE CONDITIONS (GENERAL)/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.
The NDRB did note an administrative error on the DD Form 214s issued on 86DEC24 and 82JUL27. The Branch on both DD214 should read: "NAVY - USNR" vice "NAVY - USN". These DD Form 214s should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

1. (Equity Issue) As evidenced by his and his counsel’s arguments of record, this former member avers that the findings of his Administrative Discharge Board and subsequent discharge was improper because he never used illegal drugs. Thereby, recharacterization of his service period to fully honorable is warranted.

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 DD Form 214 issued 86DEC24
Applicant's Personal Statement (2 pages)
 Recommendation and findings of the Administrative Board dated 13 Oct 91 (8 pages)
 In matter of Admin Board - Motion in limine (2 pages)
 Statement of Awareness and Request for, or Waiver of, Privileges dated 20 Jul 91 (2 pages)
 Admin Board - Motion for Specific Findings (1 page)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            861225 - 871204  HON
          Active: USNR              860903 - 861224  Rel TEMADCU
          Inactive: USNR            850210 - 860902  To report TEMACDU
                                             830219 - 850209  HON
          Active: USNR              791128 - 820727  HON
          Inactive: USNR            791117 - 791127  To report ACDU
Active: USA                       751231 – 780609  GEN
Period of Service Under Review :
Date of Enlistment: 871205               Date of Discharge: 911123

 Length of Service (years, months, days):
         Active: 00 00 25
          Inactive: 03 10 24
Age at Entry: 29                          Years Contracted: 6

 Education Level: 12      ½                  AFQT: 55
Highest Rate: BM1

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 4.0 (4)     Behavior: 3.95 (4)                OTA: 4.0

 Military Decorations: None
Unit/Campaign/Service Awards: Navy "E" (2), NUC, N&MCEM, SSDR (2)

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

890717:  Reported to active duty for training.
890728:  Released from active duty for training (12 days).

 900422:  Reported to active duty for training.
900502:  Released from active duty for training (11 days).
910417:  NAVDRUGLAB Great Lakes: Random urinalysis, positive for cocaine, evaluated by DAPA. Comments provided: According to Selected Reserve Unit Commanding Officer, member is valued member of the command, with good potential for future service. However, the clinical psychologist evaluated him as having "ETOH abuse by history, with personality disorder with mixed avoidant features". The Readiness Center Commanding Officer recommended administrative separation.
910421:  NavResRedCen, Medical Dept, Great Lakes, IL: Alcohol/Cocaine substance abuse, dependence - alcohol, not amenable to counseling/education/rehab, prognosis - likely to experience drug or alcohol problems in the future, recommend separate from service not via VA hospital.
IMPRESSION: I - ETOH abuse, by history, in denial.
II - Personality disorder with Mixed avoidant features, by history.
III - None.

910627:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a random drug screen urinalysis report.
910720:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
911005:  An Administrative Discharge Board, by unanimous vote, found that the applicant had committed misconduct due to drug abuse as evidenced by a random drug screen urinalysis report for which member is being administratively processed, and by unanimous vote, that the misconduct warranted separation, and recommended discharge with a General (Under Honorable Conditions) characterization of service.

911031:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: I concur with the board's recommendation that the applicant be separated from the Naval service by reason of Misconduct Due to Drug Abuse, and that discharge be General.
911113:  BUPERS directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911123 under honorable conditions (general) 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 the positive urinalysis for cocaine use constituted drug abuse. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. While the applicant was not subject to disciplinary action under the UCMJ since his drug usage may not have occurred during a period of duty, he was subject to administrative separation processing in accordance with reference [E]. For the applicant’s information, administrative boards are not bound by formal rules of evidence. The applicant failed to provide sufficient documentation to rebut the presumption of regularity concerning the handling of the applicant’s urine sample, or that his use of cocaine was not wrongful. The discharge was proper and equitable. Relief denied.
The Board could discern no impropriety or inequity in the conduct of the applicant’s administrative discharge board. A positive urinalysis collected in an authorized unit urinalysis examination is sufficient grounds for demonstrated drug abuse. The NDRB found no indication the applicant was denied any rights during his processing for separation, to include the conduct of his administrative discharge board. The NDRB found insufficient documentation to support the applicant’s assertion that defense counsel objections raised during the applicant’s administrative discharge review board were unfairly or improperly dismissed. Relief denied.
Issue 2. 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.
E. OPNAVINST 5350.4B, Appendix C, Enclosure (7), paragraph 2.c.

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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