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NAVY | DRB | 2001_Navy | ND01-00978

Original file (ND01-00978.rtf) Auto-classification: Denied

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

ex-MSSN, USN
Docket No. ND01-00978

Applicant’s Request

The application for discharge review, received 010725, 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 Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 28 March 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. My discharge was based solely on drug use or possession, aswauth. [A85.04]
2. My drug use was always off duty, aswauth. [A94.32]
3. I was not allowed to see a lawyer to make my decision to give up my right to a board, aswauth. [ A69.08]
4. My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good, aswauth. [A92.02]
5. I received awards and decorations, aswauth. [ A92.04]
6. I received letters of commendation, aswauth. [A92.06]
7. I had combat service, aswauth. [A92-08]
8. I was wounded in action, aswauth. [A92. 10 ]
9. My record of promotions showed I was generally a good service member, aswauth. [A92.12]
10. There were other acts of merit, aswauth. [A92.16]
11. I was so close to finishing my tour that it was unfair to give me a bad discharge, aswauth. [A92.18]
12. I had a prior Honorable Discharge, aswauth. [A92.20]
13. I have been a good citizen since discharge, aswauth. [A92.22]
14. My record of NJP's/Article 15's indicates only isolated or minor offenses, aswauth. [A92.24]
15. My ability to serve was impaired because of marital and family problems, aswauth. [A93.08]
16. Personal problems impaired my ability to serve, aswauth. [A93.10]
17. I faced racial discrimination and that impaired my ability to serve, aswauth . [A93.16]
18. My use of drugs impaired my ability to serve, aswauth. [A93.18]
19. Medical or physical problems I had impaired my ability to serve, aswauth. [A93.22]
20. Psychiatric problems I had impaired my ability to serve, aswauth. [A93.24]
21. There were matters of conscience that impaired my ability to be a "good" service member, aswauth. [A93.26]
22. My ability to serve was impaired because I was not working in the field I was trained for, aswauth . [No #]
23. The punishment I got was too severe compared with today's standards, aswauth. [A94.02]
24. The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense, aswauth. [A94.06]
25. I tried to serve and wanted to, but just couldn't or wasn't able to, aswauth. [A94.04]
26. My command abused its authority when it decided to discharge me and decided to give me a bad discharge, aswauth. [A94.12]
27. I had applied or tried to apply for conscientious objector status, but was unfairly denied or told to forget it, aswauth. [A99.02]
28. I had applied or tried to apply for a hardship discharge but was unfairly denied or told to forget it, aswauth. [A99.04]
29. I had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it, aswauth. [ A99.12]
30. My enlistment option was not satisfied or waived, awauth. [A99.10]
31. Dear Chairperson: After a review of the Applicant's (FSM) DD Form 293 Application for Discharge Review and all evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that his Discharge be upgraded from Undesirable/under other than honorable conditions. (FSM) joined the United States Naval Service on June 27, 1973 until September 30, 1990 where he served with distinction and received many out-standing evaluations without any misconduct or need for non-judicial punishment. The only notation on his Recommendation for Discharge is Undesirable/Under other than Honorable Conditions, Substance Abuse is noted as the narrative reason for Discharge. The (FSM) was a outstanding sailor prior to this incident of note without any corrective or misconduct actions. He had a long career in the navy training and supervising other sailors, and was described by several Commissioned Officer Supervisors as being a asset to the naval service as well as a role model for other young sailors. The (FSM) through his long dictated service and devotion to duty subsequently failed on this one incident and is paying the price for his entire life, living with a Undesirable Discharge, after serving his country for other seventeen years of honorable service. The (FSM) respectfully request to have his current discharge upgraded to General under conditions. He further stated that a General Discharge Under Honorable Conditions from the Naval Service is a matter of Honor, since having served with honor in the Navy for so many years. We respectfully request that the (FSM) be given complete consideration by the Board. We also request you consider each reasonable explanation submitted by the (FSM) who only wishes now to correct his Undesirable discharge to General Under Honorable Conditions. Again during the (FSM) entire military service of other (17) years he served with no infractions or acts of misconduct. These above cited recommendation of faithful and outstanding service to this country are well noted by the authority and are listed throughout his military record book. This (FSM) served a period of nearly (17) years without incident or any other action to warrant any corrective respond to be taken by his superiors. The only basic for the Undesirable Discharge referred to, is in narrative reason for discharge is Substance Abuse. This narrative reason should not be used as a basic to warrant such a separation according to its merits. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of eleven DD Form 214s (some duplicates)
Forty pages from Applicant's service record

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Active: USN                        730627 - 760426 HON
                  USN                       760427 - 800109 HON
                  USN                       800110 - 860408 HON
USN                       860409 - 890220 HON
         Inactive: None

Period of Service Under Review :

Date of Enlistment: 890221               Date of Discharge: 900829

Length of Service (years, months, days):

         Active: 01 06 09
         Inactive: None

Age at Entry: 33                          Years Contracted: 3

Education Level: 12                        AFQT: 49

Highest Rate: MS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.53 (3)    Behavior: 3.27 (3)                OTA: 3.60

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 :

900110: Civil conviction: San Diego Municipal Court for violation of driving under the influence.
         Sentence: Fine $939.00, probation for five years, attend NADSAP.

900215: NJP for violation of UCMJ, Article 92: Dereliction of duty thru neglect on 9Feb90, violation of UCMJ, Article 112A: Wrongfully use cocaine on 8Feb90.          Award: Forfeiture of $683 per month for 2 months, restriction and extra duty for 45 days, reduction to MS2. No indication of appeal in the record.

900328: 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 cocaine on 8 February 1990. Applicant refused to sign.

900407: Drug and Alcohol Abuse Report: Possession of drug paraphernalia February 9, 1990, ashore off duty. Commanding officer recommended separation. Comments: MS2 (Applicant) shows no potential for further useful service due to substance abuse.

900426: Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900606: 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.

900701: Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

900716: Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900814: CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900816: Drug and Alcohol Abuse Report: Cocaine abuse. Abuse denied. Probable cause urinalysis February 15, 1990. CAAC and physician found Applicant not dependent and recommended separate. Commanding officer recommended separate. Comments: Evaluated by CV-64 as non-dependent on 16Jan90. Placed on Level I program 23Jan90. Completed NADSAP 11May90. Petty Officer (Applicant) claims personal problems greatly contributed to his use of cocaine. But, because he was a first class petty officer, any drug use on his part shows no potential for further useful service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 900829 under other than honorable conditions for misconduct due to drug abuse (use). The Board presumed regularity in the conduct of governmental affairs. 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.

The Applicant presented the following issues:

Issue 1, the Board found that the rules and regulations applicable at the time of the Applicant's discharge provided that drug abuse alone can be relied on as the sole basis for a discharge under other than honorable conditions. Relief Denied.

Issue 2, the Board found that the use of drugs whether on-duty or off-duty was not relevant to the nature or characterization of the Applicant's discharge. Relief denied.

Issue 3, the Board found that the Applicant did consult with an attorney and was represented by that attorney at an Administrative Discharge Board. Relief denied.

Issue 4 through 11 and 14, the Board found the Applicant's discharge was proper and equitable and the characterization accurately reflected his service to his country. The Applicant used illegal drugs, which warrants processing for separation under other than honorable conditions. The Applicant acknowledged this in a signed letter requesting to exercise his right to an Administrative Discharge Board. His performance prior to the drug abuse does not mitigate his use of illegal drugs. He exercised his rights and was provided due process of law prior to his discharge under other than honorable conditions. Relief denied.

Issue 12, the Board is authorized to examine only the enlistment during which the other than honorable discharge was imposed. Prior periods of honorable service are not a basis for relief. Relief denied.

Issue 13, the Board may consider outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review. However, there is no law or regulation providing for an upgraded discharge based solely on good conduct as a civilian subsequent to leaving the service. The Applicant failed to provide any documentation of outstanding post-service conduct. Relief denied.

Issues 15 through 16, there is no evidence in the official record, nor did the Applicant provide any certifiable documentation that personal, martial or family problems contributed to his drug use. Relief denied.

Issue 17, the Board found no evidence of racial discrimination in the Applicant's official record, nor did he provide any certifiable documentation of this. Relief denied.

Issue 18, the Board agrees with the fact that drug use impaired the Applicant's ability to serve. This basis further supports the characterization of service as other than honorable. Relief denied.

Issue 19 through 22, the Board found no evidence in the Applicant's official record, nor did he provide any certifiable documentation of these medical or physical conditions. Relief denied.

Issue 23 through 24, the characterization of service as other than honorable was equitable and fair. The same standards exist for all naval personnel for discharge due to drug abuse today as existed at the time of the Applicant's discharge. Relief denied.

Issue 25, the Board found the Applicant's age, education level, test scores and length of service is contrary to his claim that he tried to serve, but could not or was not able to. Relief denied.

Issue 26, the Board found no impropriety in the discharge of the Applicant. All applicable rules, procedures, regulations and law were complied with. The Applicant did not receive a bad conduct discharge. The Applicant's characterization of service was other than honorable. Other than honorable was a proper characterization of service for drug abuse. Relief denied.

Issue 27 through 29, the Board found no evidence in the Applicant's official record, nor did he provide any certifiable documentation that he applied for conscientious objector status, a compassionate reassignment or for a hardship discharge prior to the drug incident. Relief denied.

Issue 30, the Board found no evidence in the Applicant's official record, nor did he provide any certifiable documentation that his enlistment option was not satisfied or waived. Relief denied.

Issue 31, the Board found 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 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 re-characterization of a discharge, to the extent 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 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 is hereby denied. Relief denied.

Pertinent Regulation/Law (at time of discharge)

A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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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NAVY | DRB | 2001_Navy | ND01-00978

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