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NAVY | DRB | 2002_Navy | ND02-00721
Original file (ND02-00721.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00721

Applicant’s Request
The application for discharge review, received 020424, 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 030124. 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. I had only one bad urine. My service otherwise was OK. I just completed an outpatient treatment program for drugs. Currently I receive social security disability. I hear voices. I am trying to get VA medical Benefits.

 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)     870127 - 870128  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870129               Date of Discharge: 890228

 Length of Service (years, months, days):

         Active: 02 01 00
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)    Behavior: 2.90 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: 31

 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 :

870131:  Applicant briefed on Navy's policy of drug and alcohol abuse.
870508:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121:
         Specification: Steal a radio/tape player on 870421.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $200.00, confinement for 15 days.
         CA action 8705015. Sentence approved and ordered executed.

870508:  Retention Warning: Advised of deficiency (Larceny), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870508:  Applicant to confinement.

870520:  Applicant from confinement.

870806:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $100 per month for 1 month, extra duty for 7 days. No indication of appeal in the record.
870907:  Retention Warning: Advised of deficiency (Unauthorized absence from on 0730, 870929 until 0310, 870730, a period of 21 hours and 40 minutes.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871203:  Applicant to unauthorized absence 0800, 871203.

880104:  Applicant declared a deserter.

880105:  Applicant from unauthorized absence 880105 (31 days/surrendered).

 880109:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
         Award: Forfeiture of $100 per month for 2 months, correctional custody for 30 days. No indication of appeal in the record.
880303:  Retention Warning: Advised of deficiency (Unauthorized absence on 0800, 871203 to 0215, 880105, and missed movement of USS SURIBACHI (AE-21).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880908:  NJP for violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 134: Drunk and disorderly.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
880912:  Retention Warning: Advised of deficiency (Being drunk and disorderly in public and assaulting another member of the Armed Forces.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

881206:  Applicant admitted to hospital. Admitting diagnosis: Alcohol dependence.

881209:  Applicant released from hospital. Discharge diagnosis: Alcohol dependence. S/P detox.

 881216:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine.
         Award: Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
 [Extracted from DAAR dated 890124.]
Undated:         Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

881220:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.
890109:  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 submit a statement.
890127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse (use). Commanding Officer’s comments (verbatim): [In his short time in the Navy, SR M (Applicant) has already been to Captain’s Mast five times for various violations of the UCMJ. His most recent violation involved the use of cocaine, one of the most serious problems facing the Navy today. In addition to his frequent disciplinary problems, SR M_ (Applicant) has at best been a marginally satisfactory performer. His apathetic attitude toward the Navy is indicated by his failure to respond to counseling after his numerous masts. Based on SR M_ (Applicant’s) poor performance and his history of misconduct, I strongly recommend that he be administratively separated with a discharge characterization as Other-than-Honorable.]

890120:  Applicant's statement regarding administrative separation from the Navy.

890124:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty. Unit sweep urinalysis 881117. DAPA recommended separate not via VA hospital. Physician found Applicant not dependent and recommended separation not via VA hospital. Commanding Officer recommended separation not via VA hospital. Comments: No further potential for naval service processing for admin separation.

890217:  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 890228 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 Board found the Applicant’s discharge for drug abuse (use) proper and equitable. Although the Applicant states that he “only had one bad urine,” his summary of service is marred by a Summary Court-Martial and non-judicial punishment on 4 occasions. Drug abuse (use) alone warranted processing for separation, normally under other than honorable conditions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. 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. The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor, an upgrade to honorable would be inappropriate. Relief denied.

 Additionally, the Board has no authority to upgrade a discharge for the sole purpose of obtaining VA medical benefits as requested by the Applicant. 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 not warranted.

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. 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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