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NAVY | DRB | 2001_Navy | ND01-01191
Original file (ND01-01191.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND01-01191

Applicant’s Request
The application for discharge review, received 010920, 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 Veterans of Foreign Wars as the representative.

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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was based on one incident in 30 months of service with no other adverse action.

Submitted by VFW:

2. We ask in accordance with SECNAVINST 5420.17C Manual for Discharge Review 1984 that relief is warranted based upon consideration of par 9.3 EQUITY OF DISCHARGE .

During this review it was noted the applicant had received non-judicial punishment on August 30, 1996. He was fined $490.00 for one month, reduced to pay grade E2 and assigned to 45 days restriction. The applicant's command received a MSG to convene a new administration board consisting of all new members because the old board of January 29, 1997 was improperly conveyed. It clearly showed the senior member of the board must be a naval officer. His past board consisted of all marine officers. This was a violation of the regulations. The battalion surgeon recommended retention, as did the Chief of Navy Personnel (Pers-83). The applicant contends he is deserving of an Honorable Discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's ltr to the Board undtd
 Letter of Recommendation from Capt T_ M. L_, Military Police Battalion, dtd Jan 6, 2001
Employment offer from the Jefferson County Sheriff's Office dtd Mar 8, 2001
Character Reference ltr from S_ S_ H_, Attorney dtd Aug 7, 2001
Letter of Congratulations on graduation from Dept of Criminal Justice Training Academy, dtd Aug 10, 2001
Dept of Criminal Justice Training (Quarterly Progress Report) (Jul 9 - Aug 3, 2001)
Final course grades for the Law Enforcement Basic Training (6 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     931118 - 940220  COG

 Period of Service Under Review :
Date of Enlistment: 940121               Date of Discharge: 970711

 Length of Service (years, months, days):

         Active: 03 05 21
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 95

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)     Behavior: 4.0 (1)                 OTA: 4.0 (4.0 evals)
3.0 (3) 3.3 (3) 3.3 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, CoC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

960830:  NJP for violation of UCMJ, Article 112 (2 spec):
 Spec 1: on or about 96AUG18, wrongfully possess steroids, a controlled substance.
Spec 2: on or about 96AUG18, wrongfully import an amount of steroids into the customs territory of the United States.
Award: Forfeiture of $490 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
961216:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse and that the least favorable characterization of service may be under other than honorable conditions.
961218:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970107:  Commanding officer recommended to the Senior Member of the administrative discharge board that the applicant be retained.

 970129:  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, but recommended retention in the naval service.

970228:  Commanding officer processed applicant for discharge by reason of misconduct due to drug abuse (use), but administrative board recommended applicant's retention.
970317:  GC, 1stMARDIV (Rein) recommended to BUPERS that applicant be retained on active duty and forced to convert to another rating.

970325:  Memo from the Division Surgeon, 1 st MARDIV, FMF, Camp Pendleton, CA, to BUPERS recommended that applicant be retained on active duty not as a Hospital Corpsman and converted to another rating.
970325:  Memo from the Commander Master Chief, 1 st MARDIV, FMF, Camp Pendleton, CA, to BUPERS recommended that applicant be retained on active duty not as a Hospital Corpsman and converted to another rating.
970326:  Applicant's letter to BUPERS requesting retention the naval service as a corpsman.
970331:  Command Career Counselor advises BUPERS that applicant desires to stay in HN rating and if he could not, be allowed to separate.
970429:  BUPERS advised command to refer the discharge case to a new administrative board, since the senior member of the board must be a naval officer and not a USMC officer; or member must sign statement that he accepts original board's findings and recommendation and does not desire a new board.
970505:  Applicant accepted the original boards findings and recommendations.

 970529:  BUPERS advised Secretary of the Navy (SECNAV) that while the applicant's administrative board found that the member committed misconduct due to drug abuse and that the board, as well as the member's commanding officer and the Commanding General recommended the member's retention, recommended to SECNAV that the applicant be discharged due to drug abuse with a characterization of General (Under Honorable Conditions).

970603:  SECNAV approved the applicant's discharge.

970618:  BUPERS directed the applicant's discharge with a General (Under 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 970711 with a 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 states, that the discharge was based on one incident in 30 months of service with no other adverse action. The record shows that the single incident was violation of UCMJ Article 112a (use of illegal drugs). The Board noted the applicant’s service record was favorably considered by the chain of command, and the applicant accepted the findings of the Admin Discharge Board. The final reviewing authority, however, determined that the applicant was to be discharged. The discharge awarded, General (Under Honorable Conditions) equitably describes the applicant’s service. Relief is denied.

Issue 2 requests relief based on equity in accordance with SECNAVINST 5420.17C Manual for Discharge Review 1984 par 9.3. The Board carefully considered the applicant’s service record and found the General (Under Honorable Conditions) equitably characterizes the applicant’s service. The applicant was a Hospital Corpsman trusted with the care of Marines during a FMF Tour. The applicant was found guilty of violation of UCMJ Article 112a (2 Specifications). This represents a significant departure from acceptable standards for a sailor. The applicant could have been awarded a punitive discharge at Court Martial or an Other Than Honorable discharge from the Administrative Board. The NDRB found the General discharge equitably characterizes the applicant’s service. Relief is denied.

The applicant’s representative argues that the applicant was discharged improperly due to an improper composition of officers on the Administrative Board. The record shows, however, that the applicant was made aware of this irregularity in Administrative Board membership and signed by his own hand a waiver accepting the findings of the board. The NDRB does not consider this an impropriety. 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-drug test results, 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 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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