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NAVY | DRB | 2002_Navy | ND02-00684
Original file (ND02-00684.rtf) Auto-classification: Denied


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

ex-FT3, USN
Docket No. ND02-00684

Applicant’s Request
The application for discharge review, received 020422, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 030116. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was inequitable because it was based on an isolated incident during my time of service. Also, it was an incident for which other sailors have been retained in the service or given a more “Acceptable” discharge even, with less favorable service records. In short, the discharge was not based upon my record of service, but upon the act committed. No regard was given to the sailor prior to that incident or to the sailor after that incident.

I also feel the discharge I received was inappropriate because the Board members may have been influenced by the specific recommendation of my former Commanding Officer. He specifically stated to the Board that I should be discharge from the Navy with nothing more than an Other Than Honorable. The Board, then, voted 2 to 1 on this. The result was just as he had stated I believe his rank may have influenced the Junior Officers on the Board.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Deficiency to Administrative Separation Board dated 5 October 00 (4 pages)
 Applicant’s written statement to the Board dated April 8, 2002
Letter to Applicant from Congresswoman E. B. J. dtd October 10, 2000
 Letter to Capt. M.D. Dir, House Liaison Office, from Congresswoman E. B. J. dtd October 10, 2002
2 COMSUBFORPACFLT Citations for Outstanding Performance (May-Aug 98) and (Jun-Nov99)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950330 - 950521  COG
         Active: USN                        950522 - 990403  HON

 Period of Service Under Review :
Date of Enlistment: 990404               Date of Discharge: 001117

 Length of Service (years, months, days):

         Active: 01 07 14
         Inactive: None

 Age at Entry: 26                          Years Contracted: 6

Education Level: 13+              AFQT: 89

 Highest Rate: FT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2)     Behavior: 2.5 (2)                 OTA: 3.14

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, EPS, SWS Navy E Ribbon, Expeditionary Medal, National Defense Service Medal, Sea Service Medal Dep Ribbon

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :
990404:  Reenlisted for 6 years on board USS PASADENA, Pearl Harbor, HI.

000821:  Unit sweep random urinalysis. Wrongful use of a controlled substance,
                  to wit: THC

 000905:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc, of controlled substance.
Award: Restriction 45 days, reduction to pay grade E4, forfeiture of $500.00 pay per month for 2 months. No indication of appeal in the record.
000914:  Applicant notified of recommendation for discharge under other that honorable conditions by reason of misconduct due to drug abuse.

000914:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
001003:  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, by a vote 2-1 that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

001018:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments (verbatim extracts): [Petty Officer C_ (Applicant) is being administratively processed for misconduct due to drug abuse. On 5 September 2000, Petty Officer C_ (Applicant) was found guilty of violation of the UCMJ Article 112a, use of marijuana. I have reviewed enclosures (2) and (3). Counsel for Respondent first alleges unlawful command influence because of the CO and XO testifying at the board. While this may not be the norm, there is no prohibition against it and no indication their presence caused an unjust outcome. Witnesses for the Respondent testified that they did not feel negative pressure regarding their testimony and that they felt free to testify as they chose…Lastly, testimony of the CO and XO was only given to the board members, recorder, Respondent, and counsel for Respondent, not other witnesses. The board members made their decision behind closed doors in the absence of anyone else using both sides’ testimony and documentary evidence.

         Counsel for Respondent also alleges that Petty Officer C_ (Applicant)
         May not have been responsible for his actions when he used marijuana. This is the first time this has been raised. Petty Officer C_ (Applicant) admitted at XOI, NJP, and his administrative board that he knowingly used marijuana. In his sworn statement to the board he described his use. There can be no question as to his guilt in using marijuana.

         The administrative board used their discretion in weighing the evidence and reaching their recommendations. Petty Officer C_ (Applicant) admitted to using marijuana and presented evidence to be considered by the board members. Having heard and read all evidence the board recommended that he be separated with an Other Than Honorable discharge.

         Petty Officer C_ (Applicant) lacks the moral character and integrity that is necessary for naval service. His behavior does not align with the Navy’s core values and cannot be tolerated. Petty Officer C_ (Applicant) does not have the potential for continued military service in the U.S. Navy or any military branch. Therefore, it is with my strongest recommendation that Petty Officer C_ (Applicant) be discharged from the U.S. Navy with an Other Than Honorable discharge.]

001019:  COMMANDER SUBFORCE, USPACFLT directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010110:  BUPERS directed Command to issues DD 215 to correct the SPD code as “GKK” vice “HKK,” since Applicant received an Administrative Board.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001117 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 believes his discharge was inequitable because it was based on an isolated incident. He also believes it was an incident for which other sailors have been retained in the service or given a more acceptable discharge even, with less favorable service records. In short, he believes the discharge was not based upon his record of service, but upon the act committed. In addition, he believes his discharge was inappropriate because of the testimony given at his Administrative Discharge Board.

The Board found the Applicants discharge characterization equitable and appropriate. The receipt of commendatory awards and favorable performance evaluations during an Applicant’s enlistment do not guarantee an honorable discharge. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use. 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.

 The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. Relief denied.

The following is provided for the Applicant’s information: T here 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 be provided to receive consideration for relief, based on post-service conduct.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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