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NAVY | DRB | 2002_Navy | ND02-00772
Original file (ND02-00772.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND02-00772

Applicant’s Request
The application for discharge review, received 020509, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed. The Applicant requested a personal appearance discharge review before a traveling panel closest to Houston, Texas. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030206. 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 was going thru a depression and came into the service on a drug waiver. So bad stress management on my part contributed to me dealing with my problems by using Alcohol and Drugs.
 I had a hard time adjusting to the responsibilities of dealing with anger and stress on board the USS Lawrence. I wanted to stop using drugs and abusing alcohol, but I needed help (counseling). My personnel record says I received counceling, however the only counseling I received was only a physical. There was no exchange of thought.
I loved my job as a boatswinmate and all the responsibilities I had the honor to perform. Thank you for the experience.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from the Applicant (4 pages)
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     840718 - 841126  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 841127               Date of Discharge: 880629

 Length of Service (years, months, days):

         Active: 03 07 03
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 42/46

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.35 (4)    Behavior: 3.10 (4)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

841203:  Applicant briefed on Navy's policy of drug and alcohol abuse.
850618:  Retention Warning: Advised of deficiency (Sleeping in berthing during working hours.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

851021:  Retention Warning: Advised of deficiency (Failure to execute orders quickly and properly. Demonstrated disrespect toward petty officers appointed as supervisors. Inability to be effective "Team Player" within the division and to complete a fair share of the divisional work load. Displays a poor attitude.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870116:  NJP for violation of UCMJ, Article 112A: Wrongful possession of a controlled substance and drug paraphernalia on 861216.
         Award: Forfeiture of $315 per month for 2 months, restriction and extra duty for 45 days, reduction to SA. No indication of appeal in the record.
880411:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 880320.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to SA. Forfeiture of $250.00 for 2 months, restriction and extra duty for 15 days and reduction to SA suspended for 4 months. No indication of appeal in the record.
880421:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
880519:  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.
880614:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

880615:  Drug and Alcohol Abuse Report: Polydrug abuse, less than monthly, ashore off duty. Unit sweep urinalysis 880320. Physician found Applicant not dependent. Commanding Officer recommended separation via VA hospital.

880618:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer ’ s comments (verbatim): [SN H_ (Applicant) is an outstanding worker and sailor in every regard except in his casual attitude towards the use of illegal drugs. Major counseling effort and a second chance given 18 months ago after first time he was caught obviously to no avail. Separate OTH – zero tolerance.]

880625:  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 880629 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 Applicants discharge equitable and appropriate. 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 life 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. Furthermore, 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. Relief denied.



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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