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NAVY | DRB | 2001_Navy | ND01-01139
Original file (ND01-01139.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND01-01139

Applicant’s Request
The application for discharge review, received 010828, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020419. 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 (verbatim)

 1. It is my opinion that the Other Than Honorable Discharge received on August 10, 1987 was inequitable for the following reasons: 1) The decision was based on a single incident of a positive urinalysis, after regular urinalysis testing over a 2.5 year period prior to the positive urinalysis, and regular testing for 9 months following the positive urinalysis (I was not released from the Navy until 9 months after the NJP which resulted in the other than honorable discharge). This clearly indicates that I was not a drug abuser and that this was an isolated incident of poor judgment on my part. 2) I received good evaluations while performing the dangerous and physically demanding job of working on the flight deck of the USS Enterprise. I continued to work with the same dedication to my job and shipmates for 6 months following the NJP that resulted in the other than honorable discharge. 3) I completed 3 years and 3 months of a 4 year enlistment. 4) It was not Navy policy to discharge members for a single positive urinalysis. Many members of the Navy with honorable discharges have numerous positive urinalysis. I am asking for less leniency with this request to upgrade my discharge to an honorable discharge.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Enlisted Performance Record
Copy of academic transcript from Devry Institute of Technology
Statement from applicant
Copy of Enlisted Performance Evaluation Report (3)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     840323 - 840415  COG

 Period of Service Under Review :
Date of Enlistment: 840416               Date of Discharge: 870810

 Length of Service (years, months, days):

         Active: 03 03 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12 1/2           AFQT: 52

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (3)    Behavior: 3.47 (3)                OTA: 3.53

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2)

 Days of Unauthorized Absence: 17

 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 :

840417:  Applicant briefed on Navy's policy on drug and alcohol abuse.

850708:  Applicant to unauthorized absence 0700, 8Jul85.

 850725:  Applicant from unauthorized absence 0820, 25Jul85 (17 days/surrendered).
850805:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700-0715, 2Jul86.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
861126:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 27Oct86.
         Award: Forfeiture of $358 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.
861218:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, Oct86, ashore off duty. Urinalysis Oct86. SAC found applicant not dependent and recommended separation. Separate SAC/NASAP/NDSAP/CAAC evaluation found the applicant not dependent and recommended separation. Commanding officer recommended separation. Comments: SNM has no potential for further useful naval service.
861218:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

870128:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
870128:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
870227:  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.

870304:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

870803:  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 870810 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. The applicant’s first issue states that the discharge was inequitable because it was based on a single positive urinalysis after regular testing for 2.5 years prior to the incident and 9 months following the positive urinalysis. This clearly indicates that he was not a drug abuser and that this was an isolated incident of poor judgment. The record shows the applicant was made aware of the Navy’s drug policy at the beginning of his enlistment. The applicant acknowledged he was aware of the Navy’s drug policy (840323 and 840417) on his page-13 document. The applicant’s service was marred by two NJP’s in his enlistment one on 8508 (for UA) and the second on 8611 (for wrongful use of cocaine). Drug abuse requires mandatory processing for separation, normally under Other Than Honorable conditions. An Administrative Board voted unanimously to separate the applicant Under Other Than Honorable conditions, his Commanding Officer concurred, and CNMPC directed the discharge. The NDRB found no impropriety or inequity in the discharge. Relief is denied.

Issue 2. The applicant’s second issue states that he received good evaluations while working on the flight deck and continued his positive service after his NJP’s. The discharge authority was aware of the applicant’s performance and conduct during his service. The NDRB did not find the applicant’s performance before or after his NJP to be a factor to warrant an upgrade to his discharge. The applicant was required to do his job while still in uniform. The Board determined the discharge was proper and equitable. Relief is denied.

Issue 3. The applicant’s third issue states that he completed “3 years and 3 months of a 4 year enlistment.” The applicant’s assertion that he nearly completed his enlistment is without merit. The time the applicant served on active duty was accurately characterized as Other Than Honorable due to his misconduct. Relief is denied.

Issue 4. The applicant’s fourth issue states that it was not the Navy’s policy to discharge members for a positive urinalysis. Many others received honorable discharges with positive urinalysis. The Board determined this issue has no merit. The discharge was proper and equitable. The applicant’s assertion that other drug abusers were retained has no bearing on his specific case. Every case is reviewed on it’s own merits. Relief is denied.
 The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to 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. The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is 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), effective 15 Jun 87 until
10 Jan 89, 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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