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NAVY | DRB | 2003_Navy | ND03-00184
Original file (ND03-00184.rtf) Auto-classification: Denied


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

ex-ASEAR, USN
Docket No. ND03-00184

Applicant’s Request
The application for discharge review, received 20021114, 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. 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. The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031017. 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. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:

“1. I feel the type of discharge was improper due to the fact that no counseling was ever given to me in regards to the use of marijuana. I had a great amount of depression due to the death of my mother and subsequent enlistment in the Navy. The was I dealt with my depression was to use marijuana. The command never offered any type of help to me in dealing with my depression or drug use. At the time I was 18 years old, and was not aware of any help, counseling, or legal counsel to consult with. Therefore, I request this upgrade to continue my progress in job growth to better my life.”

 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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 871012                        Date of Discharge: 891120

 Length of Service (years, months, days):

         Active: 02 01 02
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 8

 Education Level: 12                                 AFQT: 65

 Highest Rate: ASEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 78

 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 :

880916:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Service directed urinalysis 880906. Commanding Officer recommended retention and Level I treatment. Comments: SNM tested positive for THC in the accession pipeline urinalysis.

890901:  Applicant declared a deserter.

890915:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0640, 890801 to 2240, 890913 (42 days/surrendered), violation of UCMJ, Article 87: Missing ship’s movement on 890807.
         Award: Forfeiture of $391 per month for 2 months, restriction and extra duty for 30 days, reduction to ASEAA. No indication of appeal in the record.
890915:  Retention Warning: Advised of deficiency (Unauthorized absence and missing ship’s movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891007:  PNH-Emergency Room: S: Overdose, Motrin, Sudafed, attempted suicide. Applicant found fit for duty, fit for confinement if indicated. Applicant is not suicidal/homicidal. Explained to Applicant that these actions will only prolong the discharge paperwork.

891010:  NJP for violation of UCMJ, Article 86 (3 specs): (1-2) Unauthorized absence from appointed place of duty on 890915, 890916, (3) Unauthorized absence from 0630, 890917 to 0640, 890921 (4 days/surrendered), violation of UCMJ, Article 112A: Wrongful use of marijuana, violation of UCMJ, Article 134: Breaking restriction.
         Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days, reduction to ASEAR. No indication of appeal in the record.
891010:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
891010:  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.
891012:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent. Recommend administrative separation without VA treatment.

891015:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

891016:  Applicant to unauthorized absence. [Extracted from DD Form 214.]

891118:  Applicant from unauthorized absence (32 days). [Extracted from DD Form 214.]

891020:  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, in absentia, on 19891120 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).

Issue 1: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel the death of his mother was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. The Applicant elected to waive all of his rights and accepted his discharge. His service record is marred by award of non-judicial punishment (NJP) on two separate occasions for unauthorized absence and illegal drug use . Additionally, t he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. An upgrade would be inappropriate. Relief denied. For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.

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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief is not warranted.

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 6, effective 11 Jan 89 until 13 Jun 90, 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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