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NAVY | DRB | 2002_Navy | ND02-00476
Original file (ND02-00476.rtf) Auto-classification: Denied


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

ex-DKSR, USN
Docket No. ND02-00476

Applicant’s Request
The application for discharge review, received 020311, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021115. 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. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Appointment of Veterans Service Organization as Claimant's representative dated March 9, 2001
Applicant's DD Form 214
Sixteen pages from Applicant's service/medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890523 - 890525  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890526               Date of Discharge: 901017

 Length of Service (years, months, days):

         Active: 01 04 22
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

 Education Level: 12               AFQT: 50

 Highest Rate: DKSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                          Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 16

*No Marks Available for review.

 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 :

890603:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 890629:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly. Service directed urinalysis 890528. DAPA found Applicant not dependent and recommended Level I treatment. Physician found Applicant not dependent. Commanding Officer recommended retention and Level I treatment and written warning. Comments: Potential for future naval service is good. Recruit accession.

891208:  Applicant to unauthorized absence 0700, 8Dec89.

891211:  Applicant from unauthorized absence 0645, 11Dec89 (2 days/surrendered).

900216:  Applicant to unauthorized absence 0700, 16Feb90.

900220:  Applicant from unauthorized absence 2300, 20Feb90 (4 days/surrendered).

900302:  Medical evaluation for drug abuse found the Applicant to be drug/alcohol dependent.

900319:  Civil Conviction: South Bay Municipal Court, Chula Vista, CA for violation of battery on 15Feb90.
 Sentence: Probation for 3 years under the following condition: public service for 5 days, attend Battered Women Class at YWCA, and pay fine of $75.00.
900419:  Retention Warning: Advised of deficiency (Committed one or more violations of the Uniform Code of Military Justice (UCMJ), or have been convicted of an offense by civil court), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 900430:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit 0700, 15Apr90 - 1027, 19Apr90 (4 days/surrendered), violation of UCMJ, Article 112a: Wrongfully use marijuana on 19Apr90.
         Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days, reduction to DKSR. No indication of appeal in the record.
900501:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Unit sweep urinalysis 900419. CAAC and physician found Applicant dependent and recommended separation via VA hospital. Commanding Officer recommended separation via VA hospital. Comments: Member's past military work record is poor. Member's potential for future naval service is poor.

900509:  NJP for violation of UCMJ, Article 86: Failure to go at the time prescribed to appointed place of duty, to wit: general quarters station on 0715, 1May90.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
900509:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to civil conviction, and misconduct due to drug abuse.
900509:  Applicant advised of his rights and having consulted 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 and to make a statement.
900514:  Commanding Officer, USS RANGER (CV 61) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to civil conviction and misconduct due to drug abuse (use).

900521:  All forfeitures in excess of $25.00 for 2 months imposed at CO's NJP of 30Apr90 suspended for 3 months.
900605:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900809:  Applicant to unauthorized absence 0700, 9Aug90.

900812:  Applicant from unauthorized absence 0530, 12Aug90 (2 days/apprehended by San Diego County Shore Patrol).

900910:  Applicant to unauthorized absence 0700, 10Sep90.

900914:  Applicant declared a deserter.

900914:  Applicant from unauthorized absence 1700, 14Sep90 (4 days/surrendered).

901005:  Applicant to confinement.

901017:  Applicant from confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 901017 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’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity 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, or good conduct in civilian life, subsequent to leaving the 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. The Applicant did not provide sufficient documentation to mitigate his misconduct that fully warranted separation under other than honorable conditions. Relief denied.

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. 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 " afls14.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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