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NAVY | DRB | 2002_Navy | ND02-00931
Original file (ND02-00931.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND02-00931

Applicant’s Request
The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to honorable. 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 030331. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I believe my discharged should be upgraded because I was never offered treatment for my substance abuse.

2. Also no one ever came forth and told me what type of discharge I was going to receive, because upon my release date of restrictions I was given documents to sign with no information on how I received RE-4 code.

3. No one informed me of my rights to see counsel for representation to upgrade my discharge I was told upon release it will automatically be upgraded.

4. I have successfully completed a treatment facility for Alcohol & Substance Abuse with good marks. This correlates with what I was discharged for.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Integrated Discharge Summary from Riverside General Hospital
Certificate of Achievement (sobriety treatment) from Riverside General Hospital


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: 850828               Date of Discharge: 881012

 Length of Service (years, months, days):

         Active: 01 11 14
         Inactive: 01 01 02

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 11                        AFQT: 32

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (1)    Behavior: 3.00 (1)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: (2)880705-880706

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

850925:  Commenced initial active duty for training.

 860108:  Released from active duty for training having served 3 months and 14 days of active duty with characterization of service as honorable.

870211:  Reported for active duty for period of 20 months.

870323:  Certifies understanding of the Navy's and the USS NEW JERSEY's (BB
         62) drug abuse policy.

880715:  NJP for violation of UCMJ Article 86: Unauthorized absence from 0700 on 880705 until 1200 on 880707 (2 days/S).
         Award: Forfeiture of $50.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 12 days. No indication of appeal in the record.
880912:  NJP for violation of UCMJ Article 112a: Wrongful use of a controlled substance; violation of UCMJ Article 86: Unauthorized absence.
         Award: Forfeiture of $336.00 pay per month for 2 months, restriction to TPU for 33 days, reduction to E-1. No indication of appeal in the record.

880916:  Administrative Remarks from Transient Personnel Unit (By Personnel Support Detachment Treasure Island, San Francisco, CA): I understand that I am being released from active duty because of my EAOS of 12 October 88. However, because I was being processed for an administra-tive discharge by reason of Misconduct due to drug abuse, I cannot be reenlisted or recalled to active duty without the prior approval of the Commander, Naval Military Personnel Command. I understand that I will be given a reenlistment code of RE-4. Signed by Applicant, Witnessed and signed by L.M. H_, by direction.

 DISCHARGE PACKAGE NOT FOUND IN SERVICE RECORDS

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 881012 under honorable conditions (general) 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 Applicant contends that his discharge is inequitable as he was never offered treatment for his drug abuse prior to being separated from military service. Treatment for drug dependency is not a prerequisite for separation from the military service. A medical officer's opinion or CAAC evaluation of the member's drug dependency as well as offer of VA treatment is normally included as part of the service member's discharge package. As the Applicant's discharge package is not contained in his service records, the Board assumes regularity in the discharge process. Relief on this basis is therefore denied.

Issue 2: The Applicant contends that his discharge was improper as he was not informed of the type of discharge or the reenlistment code that he would receive upon separation from military service. With respect to the type of discharge, the least favorable charac-terization of service is specified within the service member's notification of intended separation. As the Applicant's notification is not contained in his service records, the Board again must assume regularity in the discharge process. With respect to reenlist-ment code, the Applicant signed a NAVPERS 1070/613 on 880916 acknowledging the code that he would be given upon discharge. Relief on this basis is also denied.

Issue 3: The Applicant contends that his discharge was improper as no one informed him of his right to seek representation in order to upgrade his discharge. While a service member is afforded many rights (including the right to obtain counsel) during processing for separation from military service, obtaining counsel for the specific purpose of upgrad-ing the discharge is not one of them. Once the discharge is awarded and the member has been separated, he may obtain legal representation in seeking an upgrade. This process is outlined within the service member's notification of intended separation. As the Appli-cant's notification is not contained in his service records, the Board again assumed regularity in the discharge process. Relief on this basis is denied.

 Issue 4: The Applicant contends that post-service conduct, specifically his completion of alcohol and substance abuse rehabilitation, warrants consideration for an upgrade to his characterization of service. 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 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. At this time, t he documentation that the Applicant has provided is not sufficient for the Board to consider an upgrade to his discharge. 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. 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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