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NAVY | DRB | 2002_Navy | ND02-00020
Original file (ND02-00020.rtf) Auto-classification: Denied


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

ex-RM3, USN
Docket No. ND02-00020

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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020217. 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 (verbatim)

1. Although, due to my Brother's death I simply made a Bad judgment call during psychiatric care. I know I gave my 16 years of professional & dedicated service. My record should indicated nothing but loyalty. I am asking that the Board Review and Resend its decision and change my discharge to Honorable Vice General Under Honorable for educational purposes. I've received my Associates Degree and I plan to continue my education and Receive my B.S. Very Respectfully

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        810311 - 841216  HON
                  USN                       841217 - 891214  HON
         Inactive: USNR (DEP)     800730 - 810310  COG

 Period of Service Under Review :
Date of Enlistment: 891215               Date of Discharge: 960614

 Length of Service (years, months, days):

         Active: 06 06 00
         Inactive: None

 Age at Entry: 29                          Years Contracted: 6 (23 months extension)

 Education Level: 12 1/2           AFQT: 35

 Highest Rate: RM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.77 (7)    Behavior: 3.71 (7)                OTA: 3 .77

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (3), AFEM, OSR, GCM (2), NER, MUC, NDSM, SASM, NUC

 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 :

941103:  Retention Warning: Advised of deficiency (Misconduct due to unauthorized absence/tardiness from your assigned place of duty. Specifically, you have reported late for work four times within the past 60 days (1, 9 September, 20 and 31 October.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950126:  NJP for violation of UCMJ, Article 86: Absence without leave on 0700-0844, 29Nov94.
         Award: Forfeiture of 1/2 month's pay for 1 month, extra duty for 45 days, reduction to RM2. Forfeiture suspended for 6 months. No indication of appeal in the record.
951027:  NAVDRUGLAB, Jacksonville, FL reported applicant's urine sample, received 951010, tested positive for cocaine.
951113:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 2Oct95.
         Award: Forfeiture of $661 per month for 2 months, restriction and extra duty for 45 days, reduction to RM3. No indication of appeal in the record.
951207:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by punishment awarded at Nonjudicial punishment held on 13 November 1995 for violation of the Uniform Code of Military Justice, Article 112a (use of a controlled substance).
951215:  Applicant extended enlistment for 23 months.

 960103:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960110:  Applicant found to be alcohol dependent.

 960208:  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 and misconduct due to commission of a serous offense, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

960314:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

960417:  Applicant to inpatient Level III treatment.

960418:  BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

960515:  Applicant from Level III treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960614 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 states that the applicant made a bad judgement call after the death of his brother and during psychiatric care and that he had 16 years of professional and dedicated service. The applicant was found guilty at NJP of violation of UCMJ Article 112a- wrongful use of a controlled substance (cocaine). The death of the applicant’s brother and the applicant’s total time in service, do not mitigate his misconduct. Navy regulations dictate mandatory processing for separation for misconduct involving drug abuse, normally under other than honorable conditions. The applicant was held accountable for his misconduct. The Board determined the discharge was proper and equitable. Relief is denied.

Issues 2 and 3 request changing the applicant’s discharge to allow him the ability to secure educational benefits. The applicant has an Associates degree and plans to earn a BS degree in the future. The Board is under no obligation and will not grant relief to allow a former service member the opportunity to obtain educational benefits. The discharge was proper and equitable. 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 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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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