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NAVY | DRB | 2002_Navy | ND02-00850
Original file (ND02-00850.rtf) Auto-classification: Denied


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

ex-SN, USNR-R
Docket No. ND02-00850

Applicant’s Request
The application for discharge review, received 020603, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the Swords to Plowshares as the representative on the DD Form 293. Swords to Plowshares notified NDRB that they do not represent the Applicant. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Wasn't offered treatment while still in the USNR: 1) Treatment status report from Santa Clara Valley Health & Hospital System, Alcohol & Drug Services. 2) Redwood Center Primary Program certificate of Achievement. 3) Impulse Management Education Certificate of Completion from the Santa Clara Valley Affiliate National Counsel On Alcohol And Drug Dependence. 4) AA/NA 12 Step Program Meeting Slip.

2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 9/12/02 and the following comments are hereby submitted.

We concur with the Applicant's contention that his discharge be upgraded.

We refer this case to the Board for their careful and compassionated consideration and request the Applicant's discharge be reviewed for upgrading it to Honorable based on equity of the discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter to Applicant from Navy Personnel Command dated October 13, 2001 (2 copies)
Four pages from Applicant's service record (2 copies)
Volunteer job list (2 copies)
Treatment status report from Santa Clara Valley Health & Hospital System, Alcohol &
Drug Services dated June 12, 2001 (2 copies)
Redwood Center Primary Program certificate of Achievement dated October 6, 2000
(2 copies)
Impulse Management Education Certificate of Completion from the Santa Clara Valley Affiliate National Counsel On Alcohol And Drug Dependence dated May 23, 2001
(2 copies)
AA/NA 12 Step Program Meeting Slip dating from October 12, 2001 thru February 13,
2002 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 961025               Date of Discharge: 971126

 Length of Service (years, months, days):

         Active: 00 00 12
         Inactive: 01 00 18

 Age at Entry: 36                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NFIR                 Behavior: NFIR            OTA: NFIR

 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, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

970904:  NAVDRUGLAB SAN DIEGO CA reported Applicant's urine sample, received 970826, tested positive for cocaine.
970911:  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 random urinalysis for cocaine on 970908.
970911:  Applicant notified of administrative separation proceedings via certified mail. No response obtained.
971101:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: "Seaman [Applicant] was sent notification of administrative board proceedings by certified mail on 11 September 1997 (enclosures (1) and (2)). As of 29 October 1997, Seaman [Applicant] failed to respond (Enclosure (5)). I recommend that Seaman [Applicant] be separated from the Naval Reserve with a discharge of Other Than Honorable.”

971124:  BUPERS WASHINGTON DC directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 971126 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: The Applicant contends that he was not offered treatment while a member of the Naval Reserve. The NDRB recognizes that serving in the U.S. Navy is challenging and that this country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. Personal problems faced by the Applicant, however, do not mitigate his use of illegal drugs. Administrative separation for drug use is normally based on a single incident and his positive test for drug use warranted such processing. This evidence of drug use warranted processing for separation normally under other than honorable conditions. Relief is therefore denied.

The service records that the Board reviewed, to include the Naval Drug Lab findings and the Commanding Officer recommendation within the Notification Procedure Letter, indicate that the Applicant’s discharge characterization accurately reflects his service to his country.

There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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 may be considered. Verifiable proof of 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, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. While the Applicant has submitted evidence of a substance-free lifestyle, this documentation, at this time, is not sufficient for the Board to consider an upgrade.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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