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NAVY | DRB | 2002_Navy | ND02-00494
Original file (ND02-00494.rtf) Auto-classification: Denied


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

ex-SMSN, USN
Docket No. ND02-00494

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 did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained American Legion representation.

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) His single violation of the UCMJ notwithstanding, this former member opines that his overall service record supports separation under honorable conditions.

2. (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:
Character reference dated September 23, 2001
Character reference dated September 23, 2001
Character reference dated September 26, 2001
Character reference, undated
Character reference, undated
Character reference from Pastor, Greater Johnson Baptist Church dated September 20, 2001
Character reference dated September 21, 2001
Character reference dated September 20, 2001
Character reference dated September 24, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880514 - 880601  COG

 Period of Service Under Review :
Date of Enlistment: 880602               Date of Discharge: 900124

 Length of Service (years, months, days):

         Active: 01 07 23
         Inactive: None

 Age at Entry: 32                          Years Contracted: 4

 Education Level: 16                        AFQT: 42

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.87 (3)    Behavior: 2.40 (4)                OTA: 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (1)

 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 :

880604:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 891221:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 7Dec89.
         Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days, reduction to SHSN. No indication of appeal in the record.
891227:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

891227:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of cocaine on 7 December 1989.
891227:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
891227:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
         Commanding Officer’s comments (verbatim): [This command has reaffirmed and publicly adopted the CNO’s Zero Tolerance Drug Abuse Policy. The presence of this mbr (Applicant) in an operational environment seriously impairs combat readiness, security, efficiency and morale…]

900104:  Drug and Alcohol Abuse Report: Cocaine abuse, abuse denied. Random urinalysis 891219. DAPA and physician found Applicant not dependent and recommended separate not via VA hospital. Commanding Officer recommended separate not via VA hospital. Comments: SHSN (Applicant) shows no potential for further useful service due to substance abuse.
         Note: Date of report corrected to 900104 from 890104.

900127:  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 900124 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 service record is marred by award of non-judicial punishment for the wrongful use of cocaine. The record clearly reflects the Applicant’s disregard for the requirements of military discipline and demonstrated he had no potential for further service. Relief denied.
Issue 2: 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, 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. 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 living a drug free life style, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The evidence provided by the Applicant does not mitigate his conduct while on active duty, and therefore an upgrade based on post-service conduct is not warranted. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that 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 6, effective 11 Jan 89 until 13 Jun 90, 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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