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NAVY | DRB | 2003_Navy | ND03-00066
Original file (ND03-00066.rtf) Auto-classification: Denied


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

ex-BMSR, USN
Docket No. ND03-00066

Applicant’s Request
The application for discharge review, received 20021010, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The Applicant requested a record discharge review. The Applicant did not list a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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

Prior to the record discharge review, the Applicant introduced no issues, as block 8 on the DD Form 293 is blank.

Documentation
The service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     851031 - 851125  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 851126               Date of Discharge: 880229

 Length of Service (years, months, days):

         Active: 02 03 04
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: GED              AFQT: 43

 Highest Rate: BMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 3.8 (1)                 OTA: 3.8

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, USCGMUC

 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 :

860522:  Applicant briefed and acknowledged understanding of the Navy’s policy on drug and alcohol abuse.
871102:  Naval Drug Lab, Jacksonville, FL: Urine sample test received on 20 Oct 87, tested positive for THC (marijuana).
871106:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $350.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
871106:  Retention Warning: Advised of deficiency (violation of UCMJ, Article 112A – wrongful use of a controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880105:  Naval Drug Lab, Jacksonville, FL: Urine sample test received on 10 Dec 87, tested positive for THC (marijuana).
880119:  NJP for violation of UCMJ, Article 107: False official statement; violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
Award: Forfeiture of $335.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

 880211:  Naval Medical Clinic, New Orleans, LA: Evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

880217:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
880217:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Applicant did not object to the separation.
880217:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): “BMSR M_’s (Applicant) medical evaluation, by LT D_ of the Naval Medical Clinic New Orleans, LA states: ‘SN M_ (Applicant) is not dependent on drugs at this time. He is responsible for his actions.’ BMSR M_ D_ M_ (Applicant), USN, possesses no potential for continued naval service. His recurring disregard for the established rules and regulations warrant his separation.”

880226:  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 880229 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 did not introduce any decisional issues for the Board’s consideration. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) for illegal drug use on two separate occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a honorable characterization of service. An upgrade would be inappropriate. Relief denied.

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 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.


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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