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NAVY | DRB | 2002_Navy | ND02-00354
Original file (ND02-00354.rtf) Auto-classification: Denied


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

ex-CTOSN, USNR
Docket No. ND02-00354

Applicant’s Request
The application for discharge review, received 020204, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020912. 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. I made a costly mistake many years ago with drugs. I have since become the only member of my family to go to college and earn my degree and furthermore move up the professional ladder. I have a wonderful wife, home and life where I also coach little league baseball. I paid for my mistakes dearly, and would like to correct my past to reflect my present with an upgrade in discharge.

Thank you for your time and consideration in this matter.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Enlisted Performance Evaluations (5 evals)
Bachelor of Science in Business Diploma, University of Phoenix, dtd 31 Mar 1999
Applicant's ltr of Jan 25, 2002 to the Board requesting expeditious processing
National Personnel Records Center letter of January 7, 2002 to the applicant

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: 870129               Date of Discharge: 901005

 Length of Service (years, months, days):

         Active: 03 07 27 (Doesn't exclude confinement time.)
         Inactive: 00 00 10

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 20                        AFQT: 44

 Highest Rate: CTO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.95 (4)    Behavior: 4.0 (4)                 OTA: 3.95

 Military Decorations: None

 Unit/Campaign/Service Awards: JSAM, SSDR, AFEM

 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 :

870127:  Statement of Understanding of the Navy's Drug and Alcohol Abuse Policy.
900705:  Special Court Martial
         Charge I: violation of the UCMJ, Article 112A: On or about 90APR13, wrongfully use methamphetamines.
         Findings: to Charge I and specification, thereunder guilty.
         Sentence: Confinement for 60 days, forfeiture of $593 per month for (2) months(s), reduction to E-3.
         CA 900817: Sentence approved and ordered executed.

900705:  Joined Navy Brig Miramar, for confinement.

 900719:  Medical Dept, NAVCONBRIG Miramar: Deemed physically qualified.
900723:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your Special Court-Martial conviction on 5 July 1990, within your current enlistment.
900723:  Applicant advised of his rights and having elected not 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. Applicant did not object to separation.

900809:  Separation Physical Exam: Given history of drug dependence and should be offered continuing care thru the VA hospital.

900809:  Applicant, having been diagnosed as drug dependent, refused VA treatment.
900809:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900823:  From confinement, to full duty.

900921:  BUPERS recommended to the Assistant Secretary of the Navy (ASN), that applicant be discharged with an Other Than Honorable by reason of misconduct due to drug abuse.

900926:  ASN approved discharge action, as recommended by BUPERS.

900928:  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 901005 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 used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant’s discharge was proper and equitable. The NDRB is authorized to consider 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. However, there is no law or regulation that 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 service. Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question. No such error or injustice is evident in the Applicant’s service record. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the Applicant's record of community service, employment, conduct, educational achievements, and family relationships. 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 documentation. The Board is impressed with the Applicant’s educational pursuits; however, the Applicant did not provide sufficient post service documentation to warrant an upgrade. Relief denied.

The Applicant remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge . The Applicant should provide additional post service documentation at this time. Representation at a personal appearance hearing is recommended, but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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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