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NAVY | DRB | 2002_Navy | ND02-00209
Original file (ND02-00209.rtf) Auto-classification: Denied


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

ex-SHSN, USNR
Docket No. ND02-00209

Applicant’s Request
The application for discharge review, received 020108, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted
1. Clean record during EAOS. Honorable discharge if I got out the Navy when EAOS was finished. Was on my second six month extension when incident occurred. The changes of policies by the commanding officer affected my personal view of the Navy and put me under duress. Did a security clearance for orders I did not request, trying to force me to be physical security. Had 38 days of leave and wanted to go home for thirty days for Christmas holidays and got denied. Excellent worker, 4.17 evaluations and never had discipline problems. Other service members in my situation either stayed in the Navy or got general discharges. Even when restricted, worked to my full capability and volunteered services to my crewmembers. Maybe the Navy was considered to be my career. An other than honorable discharge will affect my life for the rest of my life and I don't feel I deserve a glitch in my record after all I've done for my country and the Navy. Discharge inequitable because it was based on one isolated incident in sixty months of service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of Employment from United Parcel Service dated Feb 4, 2002 with employee history profile

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 950118               Date of Discharge: 010118

 Length of Service (years, months, days):

         Active: 05 05 29
         Inactive: 00 06 02

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8

 Education Level: 12                        AFQT: 58

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 4.0 (1)                 OTA: 3.8 (4.0 evals)
                  3.5 (6)                  3.83(6)                           3.36 (5.0 evals)
Military Decorations: None

 Unit/Campaign/Service Awards: SWASM w/Bronze Star, AFSM, NATO Medal, Navy "E" Ribbon, GCM, SSDR(3), OSSR(2)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

001121:  NAVDRUGLAB, San Diego, CA report: Urine samples received on 14NOV00, positive for marijuana. Applicant stated he smoked marijuana maybe 2 or 3 times, since joining the Navy.
001129:  NJP for violation of UCMJ, Article 112a: wrongful use, possession, etc., of controlled substances.
         Award: Forfeiture of $760 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
001211:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violation of UCMJ Article 112a, wrongful use, possession, etc., of controlled substance.
001211:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
001215:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

001226:  COMCARGU FIVE 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 010118 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 states his discharge was based on one isolated incident in five years of excellent service. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Board found that the applicant had good evaluations during his tenure, but his performance prior to and after the drug abuse does not mitigate the Navy’s zero tolerance policy on the use of illegal drugs. While he may feel that his dissatisfaction with his Commanding Officer was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The discharge was proper and equitable. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. 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 that an unfavorable discharge may be upgraded based solely on the passage of time, hardship, or good conduct in civilian life, subsequent to leaving the service. The applicant is reminded that 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. Legal representation at a personal appearance hearing is highly recommended but not required. 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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