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NAVY | DRB | 2002_Navy | ND02-00851
Original file (ND02-00851.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00851

Applicant’s Request
The application for discharge review, received 020603, 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 030228. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. All of my offenses were a result of my addiction to alcohol and drugs and I no longer have a drinking or drug problem please reconsider.

 Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900109 - 900304  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900305               Date of Discharge: 920317

 Length of Service (years, months, days):

         Active: 02 00 13 (does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 78

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.60 (1)                OTA : 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM

 Days of Unauthorized Absence: (20)920107-920128

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900309:  Applicant briefed on Navy Policy on Drug and Alcohol Abuse as set forth in OPNAVINST 5350.4.

901229:  Retention Warning: Advised of deficiency (Substandard performance in case of alcohol abuse incident on 901225), notified of corrective actions and assistance available (Complete the directed level I, II, or III treatment program), advised of consequences of further deficiencies, and issued discharge warning.

910108:  Retention Warning: Advised of deficiency (Knowing and unlawfully consume an alcoholic beverage while under the age of 21 years of age which resulted in disorderly, said conduct being prejudicial to good order and discipline in the Armed Forces), notified of corrective actions and assistance available (Be counseled by Command's DAPA, attend NADSAP course, be sent to CAAC), advised of consequences of further deficiencies, and issued discharge warning.
                  
910222:  Applicant completed treatment at Naval Alcohol Rehabilitation Center, Norfolk, VA. Directed to report to command DAPA upon return to command.

910621:  NJP for violation of UCMJ, Article 134: Drunk and disorderly conduct on or about 910618.
         Award: Forfeiture of $410.00 pay per month for 2 months, restriction and for 60 days, reduction to E-2. No indication of appeal in the record.

910621:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 134: Drunk and Disorderly Conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920107:  Applicant in an unauthorized absence status from 2121 on 920107 to 920128 (20 days).

920129:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 920107 to 920128.
         Award: Forfeiture of $380.00 pay per month for 2 months, restriction to the limits of USS CHARLESTON (LKA 113) for 45 days. No indication of appeal in the record.

920127:  Command conducts command-directed urinalysis; Applicant later tests positive for marijuana based on this screening.

920130:  Commanding Officer recommended to NAVPERS WASHINGTON DC that the Applicant be discharged with an other than honorable characteri-zation by reason of misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure.

920131:  Command conducts a random-screening urinalysis; Applicant tests positive for marijuana based on this screening.

920203:  Command conducts unit-sweep urinalysis; Applicant later tests positive for marijuana based on this screening.

920205:  BUPERS WASHINGTON DC directed the Applicant's command to reprocess his discharge by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure. Reprocessing necessary because Applicant's misconduct does not meet criteria for pattern of misconduct.

920206:  Commanding Officer again recommended to NAVPERS WASHINGTON DC that the Applicant be discharged; this time with a general (under honorable conditions) characterization by reason of alcohol abuse rehabilitation failure.

920218:  BUPERS WASHINGTON DC again directed the Applicant's command to reprocess his discharge by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure. Reprocessing is necessary because Applicant's violation of UCMJ Article 134 constitutes a serious offense.

920221:  Commanding Officer again recommended to NAVPERS WASHINGTON DC that the Applicant be discharged; this time with an other than honorable characterization by reason of alcohol abuse rehabilitation aftercare treatment failure, misconduct due to the commission of a serious offense, and misconduct due to drug abuse. Commanding Officer's comments: "In view of SR D_'s inability to conform to Navy standards and policies and his alcohol rehabilitation failure and drug use, recommend he be discharged from the Naval Service."

920228:  NJP for violation of UCMJ, Article 112a: (2 Specifications), wrongful use of a controlled substance.
         Award: Forfeiture of $390.00 pay per month for 2 months, restriction for 45 days, 45 days extra duty to limits of USS CHARLESTON (LKA 113). No indication of appeal in the record.
920228:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by failure to successfully complete Level III Rehabilitation Aftercare treatment; misconduct due to the commission of a serious offense as evidenced by violation UCMJ Article 134, Drunk and disorderly conduct and violation UCMJ Article 86, Unauthorized absence; and misconduct due to drug abuse as evidenced by violation of UCMJ Article 112a, Wrongful use of marijuana as evidenced by a command directed urinalysis on or about 920127, a random screening urinalysis on or about 920131, and a unit urinalysis sweep on or about 920203.

920228:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit statements on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened. Applicant did not object to the separation.

920302:  Medical Finding: Patient found to be neither psychologically nor physiologically dependent on marijuana. Patient meets DSM III criteria for alcohol dependence.
         Recommendation: As patient is considered a rehabilitation failure, he is not amenable nor is he eligible for Level III treatment at an Alcohol Rehabilitation Center. Administrative Separation may be accomplished without referral to a VA hospital.

920313:  BUPERS WASHINGTON DC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920317 under other than honorable conditions for misconduct due to commission of a serious offense (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 states that all of the offenses, as documented in his service records, were the result of his alcohol and drug dependency but that he has since overcome his addictions and requests the Board to reconsider the characterization of his discharge. The NDRB is authorized to consider post-service factors in the recharacteri-zation of a discharge even though 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. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understand-ing 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 verifiable proof of a substance-free lifestyle are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider. Relief is therefore denied.

Additionally, the Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if an error or inequity exists within the Applicant's period of enlistment. The Board found that no such error or inequity occurred during that time and that the Applicant’s discharge characterization accurately reflects his service to his country. Relief on this basis is denied .

 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. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, Drunk and disorderly conduct aboard ship if adjudged at a Special or General Court-Martial.
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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