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NAVY | DRB | 2002_Navy | ND02-01196
Original file (ND02-01196.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND02-01196

Applicant’s Request
The application for discharge review, received 020814, 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 Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030515. 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 not aware that my discharge was anything other than "Honorable Discharge" until I went for an interview with the Department of Justice, Bureau of Prisons. I was turned down for employment because my discharge was "Other Than Honorable." I immediately went to the Veterans Administration and requested a copy of my military records along with a copy of my DD214. When the records arrived, Ms. N_ A_, Veterans Service Officer and I reviewed my service file and found it not to be complete. She also found Agriculture papers for grazing permits not in my name. We removed these papers. After our careful review we could not find anything to tell us why I was issued this type of discharge. She suggested that we request another copy of my service record. We did this on January 28, 2002.

As we could not find any adverse action, I am requesting that the Review Board reverse my discharge to that of Honorable.

Attachment I & Copy of Service Record
Attachment II Copy of Second Request for Service Record

2. This is a background of events that happened very close to my discharge, to the best of my knowledge. I had a bad urinalysis. Everything began to happen very fast, I believe, because my discharge was close. I received a review of this incident and was recommended to the next review. LTJG J_, acted as my representative and at no time during the process, would say anything on my behalf. At times I would say to her, "what about my overall ratings," or "what about my almost four years of good service." She told me everything is going good. At the end of the review, they told me they were just going to go ahead and discharge me as my discharge date was so close. I honestly, until the other day, was unaware of the type of discharge I received. The DD-214 I received does not mention the type of discharge I received. If I had known, I would have appealed the action immediately. I feel that my command or my representative at the Review process improperly counseled me. Therefore, I request the Review Board take this into consideration, and with the lack of paperwork on adverse action, change my discharge to Honorable Discharge.

Attachment I & IV Copy of Service Record on Enlisted Performance Rating, Page 17
Attachment III Copy of DD-214 Received Upon Discharge

3. I honestly feel that I was not represented correctly and that my ratings were not taken into consideration. I was a 3.8 sailor for almost four years and my final rating even states an average of 3.75. I received awards, decorations, and my record of promotions shows I was a good service member. I had many other negative urinalyses and only one that ever came back positive. This one urinalysis undid everything that I worked for four years. I feel today, under current and with fair counseling and representation, I would have not received a less than honorable discharge.

Attachment I Copy of Service Record on Enlisted Performance, Page 17
Attachment II & IV Copy of Service Record on Navy Occupation and Performance Test, Page 19

4. I have always been a good citizen, prior to and since my discharge. I have always been employed except for short periods of unemployment between positions. I have never had any convictions by civilian authorities and not even a minor traffic ticket. Therefore, I would like the Review Board to take all this into consideration and reverse my discharge to Honorable.

5. After receiving the second request of my service record on March 6, 2002, the first and second copies are identical. Nowhere in these records does it show the review process or any incident that could have lead to this type of discharge. Therefore, I would like the Review Board to take this into consideration and reverse my discharge to that of Honorable.

Attachment IV & I Second and first copy of Service Record

 6. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge, or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to change his Misconduct (Under Other Than Honorable Conditions) Discharge to a General (Under Honorable Conditions) Discharge.

The (FSM) entered the United States Naval Services September 01, 1987 and separated on August 30, 1991 a period of 3 years 11 months and 29 days during this period of enlistment the FSM committed a UCMJ Articles violation the subsequent charge he was separated from service for. The FSM narrative reason for character of service of discharge was (Misconduct (Drug Abuse) due to his testing positive for marijuana usage.

The (FSM) is now requesting to seek to correct the narrative of his discharge to reflect his Post Service conduct which he feels is exemplarly, since leaving military service. The FSM hopes by requesting Post Service Clemency he may be given a chance to change his Misconduct (Under Other Than Honorable conditions) Discharge.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive a General (Under Honorable Conditions) Discharge as a member of the United Naval Services

The (FSM) sincerely hopes that by respectfully requesting and being granted an Honorable Discharge from the U S Naval Services he feels this is a important matter of Supreme Honor and Respect he will cherish throughout his lifetime. The FSM states he always gave the Naval Services all the due respect and consideration it deserved and in many cases he exceeded the somewhat higher requirements expected of all the service members.

The (FSM) also states he had always tried to achieve Honor and Respect during his entire enlistment of military duty in the Naval Forces, The DAV respectfully request that the (FSM) be given complete and duty consideration by the board.

We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the General character of his discharge from Misconduct (Under Honorable Conditions) Discharge to a General(Under Honorable Conditions) Discharge.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214 (Member 1 and Service 2 (3 copies))
Cover letter from the Disabled American Veterans, dated July 29, 2002
Letter from Applicant , dated July 16, 2002
Letter from Member of Congress, dated October 26, 2001
Letter from National Personnel Records Center, dated October 11, 2001
Standard Form 180, dated September 20, 2001 (2 copies) and January 28, 2001
Nineteen pages from Applicant 's service record
Letter from Member of Congress, dated February 21, 2002
Letter from National Personnel Records Center, dated February 12, 2002
Seventeen pages from Applicant 's service record
Record of welder or welding operat or performance qualification test, dated January 5, 2000, January 4, 2000, January 6, 2000, January 12, 2000, January 11, 2000, January 13, 2000, January 19, 2000 (2), December 7, 1999, December 2, 1999,, December 8, 1999, December 10, 1999, December 20, 1999, December 15, 1999, December 21, 1999, December 22, 1999, January 25, 2000
Job/character reference, dated June 6, 2002
Job/character reference, dated June 7, 2002
Job/character reference, dated May 21, 2002
Job/character reference, dated March 4, 2002 (2 copies)
Job/character reference, dated June 29, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     861112 - 870831  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870901               Date of Discharge: 910830

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 43

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (4)    Behavior: 3.70 (4)                OTA: 3.75
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :
870905:  Applicant briefed on Navy's policy on drug and alcohol abuse.

910403:  NAVDRUGLAB, Norfolk, VA, reported Applicant 's urine sample, received 910326, tested positive for THC.
910422:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

910423:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. Applicant objected to separation.
910508:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

910604:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Unit sweep urinalysis 910326. CAAC found Applicant not dependent and recommended Level II treatment. Physician found Applicant dependent and recommended separation. Commanding Officer recommended separation.

910729:  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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910808:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [HT3 M_’s (Applicant’s) performance has been commendable but he admits to use of marijuana. His drug use is inconsistent with Navy standards. Strongly endorse the recommendations of the Administrative Discharge Board that HT3 M_ be discharged from the Navy under Other Than Honorable Conditions. The Original Administrative Board in this case was forwarded on 24 May 1991 (reference (b) refers). Due to perceived “under command influence” reference (c) directed that a new board be conducted. Both boards finds are the same.]

910822:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug use.

910830   Applicant discharged with a discharge characterization of under other than honorable conditions for misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 910830 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 & 5: The Applicant was processed for an administrative discharge due to drug abuse (use). The Applicant’s service record clearly documents the Applicant’s positive urinalysis for THC. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. The Applicant ’ s service is equitably characterized as being performed under other than honorable conditions due to his own misconduct. The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use. Furthermore, 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. An upgrade to honorable would be inappropriate. Relief denied.

 Issue 2: The Applicant was properly informed that he was recommended for discharge under other than honorable conditions, he consulted with counsel and elected to appear before an Administrative Discharge Board. The Applicant appeared before an Administrative Board (on two occasions according to his Commanding Officer’s letter to the Chief of Naval Personnel). The Board proceedings for the Board held 29 July 1991 are contained in the Applicants official service record. The Board determined the Applicant had committed misconduct due to drug abuse, the misconduct warranted discharge and the characterization of service recommended as under other than honorable conditions. The Applicant’s service record contains a microfiche image of his DD Form 214, clearly signed by the Applicant and clearly indicating that the Applicant was discharged under other than honorable conditions for drug use. Relief denied.

Issue 3: The Applicant states: “ This one urinalysis undid everything that I worked for, for four years.” The Applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable at the time of discharge and would be proper and equitable if processed under today’s standards. The Applicant further states that he was a 3.8 sailor for most of his four years and that his awards, decorations and record of promotions shows he was a good service member. The Board agrees that the Applicant had good evaluations throughout his tenure, but his performance prior to his drug abuse does not serve to mitigate his use of illegal drugs. Relief not warranted. Relief denied.

Issues 4 & 6: 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 lifestyle, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. 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 15560C), effective 15 Aug 91 until 04 Mar 93, 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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