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NAVY | DRB | 2003_Navy | ND03-00008
Original file (ND03-00008.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND03-00008

Applicant’s Request
The application for discharge review, received 20020925, requested that the characterization of service on the discharge be changed to honorable, general/under honorable conditions, uncharacterized or entry level separation. 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 20030828. 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 (Applicant) request permission to have my OTH overturn to a general as request after 5 to 10 years upon discharge.

2. I (Applicant) have cleaned-up my life and now driving trucks for the City of Dallas

3. I (Applicant) completed in-patient and outpatient treatment at NEXUS.

4. I (Applicant) served 10 years in the U.S. Navy and I must admit were the best years of my life until the end. At the mercy of the board please grant my request and overturn my OTH into a General.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     790416 - 791217  COG
         Active: USN                        791218 - 831120  HON
                  USN                       831121 - 890914  HON

 Period of Service Under Review :
Date of Enlistment: 890915               Date of Discharge: 910507

 Length of Service (years, months, days):

         Active: 01 07 23
         Inactive: None

 Age at Entry: 28                          Years Contracted: 6

 Education Level: 12                        AFQT: 52

 Highest Rate: MS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.33 (3)                OTA: 3.47

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (2 ND ), MUC, NDSM, OSR (5)

 Days of Unauthorized Absence: 7

 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 :

900328:  Civil Conviction: Clay County Court for violation of worthless checks (four counts-capias).
 Sentence: Court withheld adjudication. Ordered to pay $90.75 court cost and $80.00 state attorney fees.
900711:  Retention Warning: Advised of deficiency (On 28 March 1990 you appeared in Clay County Court on a worthless check (4 counts-capias) charge. You plead guilty and the court withheld adjudication. You were ordered to pay $90.75 court cost and $80.00 state attorney fees.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901114:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 901106, tested positive for cocaine

910222:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 910214, tested positive for cocaine.

910222:  NJP for violation of UCMJ, Article 86 (2 specs): Absence without leave, violation of UCMJ, Article 112A: Wrongful use, possession, etc, of controlled substance.
         Award: Forfeiture of $561 per month for 2 months, restriction for 30 days, reduction to MS3. Forfeiture for one month suspended for 6 months. No indication of appeal in the record.
910227:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent. Referred to CAAC for Level I/II.
910306:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious civilian offense as evidenced by civil conviction on 28 march 1990 for worthless checks (four counts-capias) and misconduct due to drug abuse as evidenced by Commanding Officer's nonjudicial punishment for wrongful use of cocaine. Further evidenced by Navy Drug Screening Laboratory, Naval Air Station, Jacksonville, Florida message dated 220836Z Feb 91 which indicated your urine samples, collected on 12 February and 14 February 1992, tested positive for use of cocaine.
910306:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910401:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910408:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

910429:  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 19910507 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).

In the Applicant’s issues 1, 2, 3, and 4 the Board determined that these issues have no merit. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. There was no error in propriety or equity in the execution of this discharge or the assignment of the discharge characterization. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there 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 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 understanding of the applicant's performance and conduct during the period of service under review can be considered. Documentation to validate the Applicant’s post-service conduct must be provided to the Board. Examples of post-service documentation to provide include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of substance free lifestyle. At this time, the applicant has not provided any documentation for the Board to consider. Therefore, relief will not be granted.
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), Change 11, effective
14 Jun 90 until 14 Aug 91, 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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