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NAVY | DRB | 2002_Navy | ND02-00616
Original file (ND02-00616.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND02-00616

Applicant’s Request
The application for discharge review, received 020403, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030107. 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. To whom it may concern: I would first like to apologize for not being the person I should have been & because I made a mistake my life has been dramatically affected by it because I tested positive for cocaine & marijuana but today after been in recovery process through the NA, CA & AA program my life is getting better one day at a time but I wish that the navy would have treated me instead of discharging me because it was a devastating blow to me. Also I was put on Anti-buse for alcohol but the dosage was too strong & I would find myself standing up on watch sometimes falling asleep so they eventually took me off of it so today my plea is that you will consider upgrading my discharge so if I get ill I can go to the VA or even one day purchase a home. Presently I'm a member of Operation Outreach which reach out to troubled kids & a board member of No More Victims Inc & we reach out to children of incarcerated parents so now my goal is to reach out to the youth now so we want have to go & visit them later in jail so thanks for your consideration & it will be greatly appreciated.
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):
         Inactive: USNR (DEP)     880319 - 880419  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 880420               Date of Discharge: 900201

 Length of Service (years, months, days):
         Active: 01 09 13
          Inactive: None
Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 53
Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.80 (3)    Behavior: 2.66 (3)                OTA: 3.53

 Military Decorations: None
Unit/Campaign/Service Awards: NAM, BATTLE"E", SSDR

 Days of Unauthorized Absence: 2
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 :

880504:  DAAR indicates marijuana abuse as a result of a service directed urinalysis, recommended for retention and Level I Treatment.
881114:  Retention Warning: Advised of deficiency (unauthorized absences resulting in numerous counseling sessions, XOI and NJP), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
881118:  NJP for violation of UCMJ, Article 86: Absent without leave 881115-881117 (2 days/Returned); violation of UCMJ, Article 92: Failure to obey lawful order.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

 881205:  NAVDRUGLAB [NORFOLK, VA], reported Applicant’s urine sample, received 881123, tested positive for [cocaine].
881208:  NJP for violation of UCMJ, Article 112a: Use of controlled substance, cocaine.
         Award: Forfeiture of $336.00 pay per month for 2 months. No indication of appeal in the record.

 881209:  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.
881209:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
881213:  DAAR indicates cocaine abuse as a result of a random urinalysis, recommended for separation not via VA Hospital.
881215:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

881219:  Commanding Officer, USS EXPLOIT (MSO-440), concurring with the Admin Board, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
890117:  CO, USS EXPLOIT, resubmitted admin discharge package due to original package lost at CNMPC.

890124:  CO, USS EXPLOIT, recommended to NMPC that Applicant's discharge under other than honorable conditions be suspended for one year based on member's performance.

890126:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890130:  CNMPC received CO's letter of 890124 recommending suspension of Applicant's discharge.

890204:  CNMPC granted authority to suspend Applicant's discharge for period of 12 months.

890209:  Retention Warning: Advised of pending separation with an Other Than Honorable Discharge and subsequent suspension for 12 months probationary period. Notified of the requirement for retention and advised of consequences of further deficiencies, and subsequent execution of the discharge.

891026:  NJP for violation of UCMJ, Article 86: (2 Specifications), Absent without authority.
Award: Restriction to USS EXPLOIT for 30 days, extra duty for 30 days. No indication of appeal in the record.
891027:  Retention Warning: Advised of deficiency (unauthorized absence on two separate instances), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900201:  Applicant discharged under other than honorable conditions due to misconduct - drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 900201 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. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. 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. Relief denied.
Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief not warranted.

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 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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