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NAVY | DRB | 2002_Navy | ND02-00254
Original file (ND02-00254.rtf) Auto-classification: Denied


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

ex-DA, USN
Docket No. ND02-00254

Applicant’s Request
The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. While in the United States Navy, I did indeed have a problem with Cocaine. I believe that I was released from the military with a handicap. One year after my discharge, on September 10, 1989, I admitted myself to a rehabilitation center called the Care Unit in Oxnard, CA and learned a lot about addiction and drug abuse. I have been a productive member of society since and I believe that my work history and my record should speak for themselves, I have been with the same company for the past 8 years and I have advanced and prospered. I wish the board could review my military record and my life and make me eligible for the benefits that I believe I deserve for the good time that I gave to my country.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        781018 - 831017  HON
         Inactive: USNR (DEP)     780811 -781017   COG

 Period of Service Under Review :
Date of Enlistment: 840808               Date of Discharge: 880807

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

Education Level: 13                        AFQT: 58

 Highest Rate: DT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (3)    Behavior: 3.53 (3)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: GCA, SSDR, MUC, NAVY"E"RIBBON, NEPR, NMRR

 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 :

840808:  Reenlisted at U.S. Navy Recruiting District Los Angeles MEPS CA for 4 years.

870423:  NJP for violation of UCMJ, Article 112a: Wrongfully use a controlled substance to wit: Cocaine as determined by urinalysis results 102045Z San Diego.
         Award: Forfeiture of $508.00 pay per month for 2 months (suspended for 6 months), restriction for 45 days, reduction to E-3. No indication of appeal in the record.

870512:  Retention Warning: Advised of deficiency (Drug Abuse (Cocaine)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870513:  Substance Abuse Report indicates applicant denies drug use after positive urinalysis on a unit sweep on 870217, found not dependent, is amenable and eligible for treatment, retention potential positive, retained onboard and given a written warning on page 13 of service record.

880720:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
         Award: Forfeiture of $378.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (suspended for 6 months), reduction to E-2. No indication of appeal in the record.

880721:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for cocaine use on or about 870217 and a positive urinalysis for cocaine use on or about 880323.
880722:  Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
880726:  Substance Abuse Dependency Evaluation found applicant not dependent.

 880729:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

880803:  DAAR indicates cocaine abuse as a result of a unit sweep urinalysis, found not dependent by medical officer.
880803:  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 880807 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 he was released from the military with a handicap. However, he was found not to be drug dependent by proper medical authority prior to his discharge and 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 applicant’s misconduct reflects his willful disregard for the orders and directives that regulate good order and discipline in the naval service. A characterization of service of under other than honorable conditions is warranted when a member’s conduct constitutes a significant departure from that expected of a sailor. The applicant’s conduct, which forms the primary basis for determining the character of service, is marred by the award of non-judicial punishment (NJP) on two occasions, for wrongful use of a controlled substance, cocaine. The applicant’s conduct falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. Relief denied.

Issue 2: The applicant states he has been a productive member of society since his discharge from the Navy. T here 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 civilian life, subsequent to leaving the naval service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documents that should have been provided to receive consideration for relief, based upon post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief denied.

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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