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NAVY | DRB | 2001_Navy | ND01-00954
Original file (ND01-00954.rtf) Auto-classification: Denied


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

ex-AZ3, USN
Docket No. ND01-00954

Applicant’s Request
The application for discharge review, received 010723, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance before a traveling panel closest to Orlando, FL. The applicant listed the American Legion 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. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) Her violation of the UCMJ notwithstanding, this former member opines that her excellent overall service record warrants a fully honorable discharge.

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
Copy of DD Form 214
One hundred and forty-two pages of supporting evidence from administrative board
Thirty-two pages from pre-mast investigation
Ninety-two pages from applicant's service record
Fifty-nine pages from CAAC records
Forty-seven pages concerning November 1999 unauthorized absence charge in Keflavik, Iceland

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960213 - 961215  COG

 Period of Service Under Review :
Date of Enlistment: 961216               Date of Discharge: 000816

 Length of Service (years, months, days):

         Active: 03 08 01
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rate: AZ3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (6)    Behavior: 3.33 (6)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), AFSM (1), AFEM (2), NER (3), NATO, MUC (2)

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

991117:  Retention Warning: Advised of deficiency (Unauthorized absence as evident by your appearance at Executive Officer Inquiry held on 17 November 1999 concerning the incident that took place on 25 October 1999), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000229:  Applicant's wrongful use of a controlled substance on 29Feb00. Applicant refused NJP.
000310:  NAVDRUGLAB, Jacksonville, FL, reports applicant's urine sample, received 000302, tested positive for THC.
000519:  CAAC evaluation for drug abuse found the applicant did not meet criteria of diagnostic and statistical manual of mental disorders, fourth edition DSM-IV for a diagnosis of marijuana abuse or dependence.

000627:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000627:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000629:  Applicant requested exculpatory polygraph.

 000712:  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 by a vote of 2 to 1 recommended discharge general (under honorable conditions).

000714:  Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

000802:  SJA's review of administrative separation. Complete review found in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000816 general (under 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. The applicant used illegal drugs. The Board did review all records and documents associated with the applicant’s discharge and determined that separation for drug abuse was warranted and the applicant’s performance prior to the drug abuse does not mitigate her violation of UCMJ, Article 112A. The discharge was proper and equitable. Relief denied.

Issue 2. The applicant’s discharge characterization accurately reflects her service to her country. The discharge was proper and equitable. Normally, to permit relief, an error of injustice must have occurred 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 her not using drugs, are examples of verifiable documentation that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. She is reminded that she 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.

The following are response to comments made by the applicant in a letter submitted to the Board.

Comments 1, 2 and 3. The applicant states that her conduct and efficiency ratings/behavior and proficiency marks were good and she received awards and decorations. The Board agrees with the applicant’s statements, however, her misconduct was significant enough to over shadow her prior good performance. She was held accountable for her misconduct then properly and equitably discharged. Relief denied.

Comment 4. The applicant states that her record of promotions showed she was generally a good service member. The Board noted that applicant received recognition for her good performance by being promoted and receiving awards. Unfortunately, she also received reprimand for her misconduct. The discharge was proper and equitable. Relief denied.

Comment 5. The applicant states that her record of UA indicates only minor or isolated incidents. Unauthorized absence (UA) is a violation of the UCMJ. However, the applicant was not discharged for her UA. She recived a retention warning for her UA and was given an opportunity to correct her behavior, which her record shows she did not do. Additionally, the military does not, as a standard practice, allow service members amnesty for their first violation of the UCMJ or isolated incidents. If you violate the UCMJ you are subject to the punishment established for the misconduct committed. The applicant’s discharge was proper and equitable. Relief denied.

Comment 6. The applicant states that personal problems impaired her ability to serve properly. There is no evidence in the applicant’s record that shows she was being harassed or that she presented her personal problems to her chain of command, for their assistance. Her misconduct was unacceptable behavior and she received just punishment. Relief denied.

Comment 7. The Board detemined this is a non-decisional issue/comment. No further response is required. Relief denied.

Comment 8. The applicant states that she has been a good citizen since her discharge. The applicant did not provide any documentation to support this claim. See Issue 2. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

A. The Naval Military Personnel manual, (NAVPERS 15560C),Change 27, effective 27 March 2000 – 11 Feb 2001, article 1910-146 (formerly 3630620), Separation by Reason of Misconduct – 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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