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NAVY | DRB | 2002_Navy | ND02-00450
Original file (ND02-00450.rtf) Auto-classification: Denied


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

ex-YNSN, USN
Docket No. ND02-00450

Applicant’s Request
The application for discharge review, received 020301, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to (left blank). The Applicant listed Dallas County Veterans Service Office as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. Subsequent to the application, the Applicant changed representation to the Disabled American Veterans. The Applicant failed to appear for the scheduled personal appearance discharge review. Therefore, a documentary review with representation was conducted. The Applicant is not eligible for further review by the Naval Discharge Review Board. A request for further review will not be granted unless the Applicant can demonstrate that the failure to appear was due to circumstances beyond the Applicant 's control.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424. 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. March 1987, in Meridian, Mississippi, I was in training NTTC Meridian, MS (YNA) School. I returned from liberty off base; I was intoxicated, although in uniform. I was escorted to my room by the petty officer of the watch as well as two seamen. The following morning on being awakened, the Shore Patrol, P.O. of the Watch, OOD, COD were in my room and I was read my rights under Article 32 of the UMC. When I questioned the logic of such reading, I was advised by LT F_ (Executive Officer on Duty) that I was being charged with possession of Marijuana, but I knew that I didn't have any Marijuana in my possession. Urine analysis post facto revealed I did not have any Marijuana in my system. I was given a CPT's Mast and in effect summarily discharged. My work performed in the Navy was rated average, and yet, average somehow did not seem to qualify me for continued Naval service, which would appear to be a gross error on the part of the Navy. It should also be evident in my case that I was not provided legal counsel in the Navy in order that I could understand the true meaning and effect of my discharge.

 2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Conditions, to that of Honorable.

The FSM served on active service from September 24, 1986 to April 18, 1988 at which time he was discharged due to misconduct due to drug use with the current discharge, Under Other Than Honorable Conditions.

The FSM contends the current discharge is improper, and by virtue of the application, requests a review of the evidentiary record for impropriety.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant's discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board's discretionary authority.

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Sixteen pages from Applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     860514 - 860923  COG

 Period of Service Under Review :
Date of Enlistment: 860924               Date of Discharge: 880418

 Length of Service (years, months, days):

         Active: 01 06 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (2)    Behavior: 3.13 (3)                OTA: 3.30

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

860929:  Applicant briefed on Navy's policy of drug and alcohol abuse.
861217:  Applicant enlisted under fraudulent conditions by failing to disclose dependents. No intentional deception by Applicant. CNMPC advised command to retain and advised Applicant.

870225:  Medical evaluation for drug abuse found the Applicant to be a cannabis abuser, episodic.

870319:  NJP for violation of UCMJ, Article 112A: Wrongful possession of a controlled substance, violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $383 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
870722:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery, violation of UCMJ, Article 92: Failure to obey a written order.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
880229:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Probable cause urinalysis on 880118. Clinical psychologist found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: Member's present work performance is average. Does not show potential for future naval service.
880330:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB message 282050Z Jan 88.
880330:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
880401:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [Recommend other than honorable discharge be given. This is member's second drug abuse violation. There is no potential for continued service.]

880407:  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 880418 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: Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. The Applicant’s service record is marred by the award of non-judicial punishment (NJP) on two occasions, to include wrongful possession of a controlled substance. Additionally, the Applicant was found by the appropriate medical authority to be an episodic cannabis abuser. Prior to discharge, the Applicant was advised of his rights, and elected not to consult with counsel, nor did he appeal his earlier non-judicial punishments. 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. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

 The Applicant is not eligible for further review by the Naval Discharge Review Board. A request for further review will not be granted unless the Applicant can demonstrate that the failure to appear was due to circumstances beyond the Applicant 's control.


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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