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NAVY | DRB | 2002_Navy | ND02-00730
Original file (ND02-00730.rtf) Auto-classification: Denied


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


ex-YNSA, USN
Docket No. ND02-00730

Applicant’s Request
The application for discharge review, received 020424, 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 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 got discharge for substance abuse to wit: THC Marijuana cocaine I need help. My life is unmanageable. I have accepted Christ as my personal savior and have renewed my mind

2. I was incarcerated and was given a chance by Judge T_ D_ to court ordered treatment CAAP. But can't get accurate care at Veterans Admin. Hosp. (VA) because of my Discharge. Help me please.

3. I've joined Temple of Deliverance Church under the leadership of Bishop P_. I'm praying daily to God asking him to take the taste of drugs out of my mouth.

4. Getting a job a good job is unheard of with a OTH. L_ J_ is my Role model and also a Christian man. Please help me Review Board with a Second Change. This is my first time applying for review of my Discharge.

 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)     860909 - 861123  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 861124               Date of Discharge: 880701
Length of Service (years, months, days):

          Active: 01 07 08
          Inactive: None

 Age at Entry: 18                          Years Contracted: 4
Education Level: 12                        AFQT: 31

 Highest Rate: YNSN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.30 (2)    Behavior: 2.80 (3)                OTA: 2.40
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, BER
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 :

861127:  Applicant briefed on Navy's policy of drug and alcohol abuse.
871128:  Retention Warning: Advised of deficiency (UA, failed to obey lawful order, etc.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880606:  NJP for violation of UCMJ, Article 134: Wrongfully conceal stolen property, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 134: Wrongfully possess two military I.D. cards, violation of UCMJ, Article 112A: Wrongful use of a schedule one controlled substance. Date of offenses: 870805, 880516, 880521.
         Award: Forfeiture of $370 per month for 2 months, reduction to YNSA. No indication of appeal in the record.
880608:  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 unit sweep urinalysis.
[Extracted from Commanding Officer's message dated 880623.]
880608:  Applicant advised of his rights and having elected not to consult 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.
[Extracted from Commanding Officer's message dated 880623.]
880613:  Medical evaluation for drug abuse found the Applicant to not dependent on ETOH/THC/cocaine.

880617:  Drug and Alcohol Abuse Report: Marijuana abuse ashore off duty. Unit sweep urinalysis 880521. DAPA and physician found Applicant not dependent and recommended separate from service. Commanding Officer recommended separate from service.
880623:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [SNM signed page 13 counseling him on the Navy's policy toward drug abuse 27Apr 87. Also signed page 13 counseling and warning for an unauthorized absence for a period of approximately seven hours. SNM was found to have a missing college class ring in his possession that had been taken from a stateroom. SNM has no potential for further naval service. Continued presence on board is viewed as prejudicial to good order and discipline. Recommend SNM receive an other than honorable discharge.
880629:  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 880701 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. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. 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. 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. An upgrade to honorable would be inappropriate. Relief denied.
Issues 2 & 4: The Board has no authority to upgrade a discharge for the sole purpose of obtaining VA medical benefits or improving employment opportunities 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.
Issue 3: 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 have been provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged

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), effective 15 Jun 87 until
10 Jan 89, 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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