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NAVY | DRB | 2002_Navy | ND02-00635
Original file (ND02-00635.rtf) Auto-classification: Denied


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

ex-EOCN, USN
Docket No. ND02-00635

Applicant’s Request
The application for discharge review, received 020404, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293. The Applicant stated he was unable afford to travel to Washington, D.C. due to financial reasons, therefore NDRB converted Applicant's case to a documentary review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612. 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. My discharge was inequitable because it was based on one isolated incident in 48 months of service with no other adverse action.

 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 Discharge to that of General Under Honorable Conditions.

The FSM served on active service from June 7, 1983 to May 6, 1987 at which time he was discharged due to misconduct – drug abuse.

The FSM contends the current discharge is improper because it is based off one isolated incident in forty-eight months of service. Although there appears to be more than one incident, the FSM was a lower enlisted member and should have been allowed an opportunity for probation and rehabilitation.

As this process was not allowed, 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. See, SECNAVIST 5420.174 (c), Par. (f) (1).

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, under SECNAVIST 5420.174C.
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:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     830128 - 830606  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 830607               Date of Discharge: 870506

 Length of Service (years, months, days):

         Active: 03 11 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 68

 Highest Rate: EO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (4)    Behavior: 3.65 (4)                OTA: 3.65

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 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 :

830608:  Applicant briefed on Navy's policy of drug and alcohol abuse.
850414:  Alcohol/Drug Abuse Evaluation: Sporadic (1x) cocaine use. Applicant not dependent, physically or psychologically on ETOH, THC or any other clinical substance.

860805:  NJP for violation of UCMJ, Article 86: Unauthorized absence from morning quarters on 860804, violation of UCMJ, Article 134: Wrongfully used another member's military identification card on 860707.
         Award: Forfeiture of $50 per month for 1 month, restriction for 30 days, reduction to SHSN. Reduction suspended for 4 months. No indication of appeal in the record.
870410:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 870322, violation of UCMJ, Article 112a: Wrongful use of cocaine on 870316.
         Award: Forfeiture of $300 per month for 2 months, extra duty for 2 days, reduction to EOCN. No indication of appeal in the record.
870422:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty. Random urinalysis 870316. DAPA and physician found Applicant not dependent and recommended Level I treatment. Commanding Officer recommended separation via VA hospital. Comments: Member’s past work record has been good; however due to current drug use potential for future naval service is poor.

870422:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the random urinalysis screening conducted 16 March 1987 which was confirmed positive for cocaine by the Navy Drug Lab, San Diego, CA.
870422:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
870422:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): Recommend that EOCN (Applicant) be separated from the naval service with a characterization of discharge under other than honorable conditions. He violated the Navy's zero tolerance drug abuse policy by wrongfully using cocaine on or about 16 March 1987. He received NJP on 10 April 1987. EOCN (Applicant) is fully aware of the Navy's drug abuse policy and has disregarded it. This type of action has no place in the Navy and will not be tolerated. Therefore, it is in the best interest of this command and of the Navy that EOCN (Applicant) be immediately separated from the naval service with an other than honorable discharge.

870430:  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 870506 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).

 Issues 1 and 2. There is credible evidence in the record that the Applicant used illegal drugs. Even one instance of drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant’s time in service and rank does not mitigate his misconduct. Relief denied.
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 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. Relief not warranted.



Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective
15 Dec 86 until 14 Jun 87, 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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