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NAVY | DRB | 2002_Navy | ND02-00858
Original file (ND02-00858.rtf) Auto-classification: Denied


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

ex-FA, USNR
Docket No. ND02-00858

Applicant’s Request
The application for discharge review, received 020530, 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. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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. (Equity Issue) This former member opines that martial problems contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service to General (Under Honorable Conditions).

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Statement from Applicant dated May 17, 2002
Applicant's DD Form 214

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: 850221               Date of Discharge: 880803

 Length of Service (years, months, days):

         Active: 02 06 01
         Inactive: 00 11 11

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 68

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.33 (3)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, NEA

 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 :

860203:  Applicant ordered to active duty under the Active Mariner Program.

860204:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 860530:  NJP for violation of UCMJ, Article 92: Fail to obey a lawful order on 860518.
         Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
860530:  Retention Warning: Advised of deficiency (You were found guilty at OIC's NJP for violation of the UCMJ, Article 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860815:  Substance Abuse Report: Cocaine abuse, 1 to 3 times per week, ashore off duty June 1986. Self-referral/disclosure June 1986. Medical officer found Applicant not dependent and recommended Level III treatment. Separate evaluation found Applicant not dependent and recommended separate via VA hospital. Commanding Officer recommended processing for separation. Comments: Member is being processed for separation in accordance with OPNAVINST 5350.
870919:  NJP for violation of UCMJ, Article 92: Failure to obey other lawful order.
         Award: Forfeiture of $100 per month for 2 months. Forfeiture of $50.00 suspended for 6 months. No indication of appeal in the record.
880224:  Psychiatric evaluation: Discharge diagnoses: Axis I: 1. Adjustment disorder with depressed mood, 2. Alcohol Abuse, 3. Amphetamine abuse. Axis II: No diagnosis, but with dependent and immature traits. Recommended for Level II drug treatment.

880316:  Applicant submitted a conditional waiver.

 880408:  Drug and Alcohol Abuse Report: Amphetamine abuse, 1 to 3 times per week, ashore off duty January 1988 - February 1988. Medical February 1988. Medical officer found Applicant not dependent and recommended separation via VA hospital. Commanding Officer recommended processing for separation. Comments: Member is determined to have no potential for future naval service and is being processed for administrative separation.
880428:  Conditional waiver disapproved.

 880504:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by nonjudicial punishment for violation of Article 92 dated 870919 and misconduct due to drug abuse as evidenced by your own admission and subsequent positive testing on a screening urinalysis administered by Naval Hospital, San Diego, CA, dated 880222.
880511:  Medical evaluation for drug abuse found the Applicant to be a psychological (not physical) drug-dependency. Pt may attend VA sponsored drug rehabilitation upon discharge.

880511:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
880614:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

880711:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of a serious offense.

880730:  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 880803 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).

The Applicant contends that family problems surrounding the time of his discharge contributed to his misconduct and that these problems should be taken into account in assessing an upgrade to his discharge. Personal problems that a Sailor faces while on active duty, however, do not mitigate any misconduct undertaken by that service member. The records that the Board reviewed showed that the Applicant repeatedly violated the UCMJ and that he was accountable for his actions. This evidence of misconduct warrants a characterization of service normally less than honorable. The Applicant’s service is equitably characterized as under other than honorable conditions due to the Applicant's two non-judicial punishments for failure to obey a lawful order and two admissions to drug use. Relief on this basis is denied.

 Responding to the Applicant’s second issue, 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 civilian life subsequent to leaving the service. The NDRB is authorized, however, 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 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. E vidence 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 verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider. Relief denied.

 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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