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NAVY | DRB | 2003_Navy | ND03-01190
Original file (ND03-01190.rtf) Auto-classification: Denied


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

ex-MFFA, USN
Docket No. ND03-01190

Applicant’s Request
The application for discharge review was received on 20030702. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests 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 she 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 advised the Board that she would like to amend her application and request a personal appearance and appointed the American Legion as the representative.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040429. 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 stated

 Issues submitted by Applicant’s counsel/representative ( American Legion):
1. “(Equity Issue) This former member opines that personal and marital problems impaired her ability to serve and was contributing factor in her misconduct of record.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, dated June 19, 2003
Character reference, dated June 9, 2003
Character reference, dated June 18, 2003
Associate in Applied Science Computer Programming diploma, dated December 18, 2002
Computer Programming diploma with a concentration in RPO Programming, dated December 18, 2002
Computer Programming diploma with a concentration in Visual Basic Programming, dated December 18, 2002
Computer Programming diploma with a concentration in COBOL, dated December 18, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     840125 - 840401  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 840402               Date of Discharge: 881028

 Length of Service (years, months, days):

         Active: 04 06 27
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (12 months extension)

 Education Level: 14 2/3           AFQT: 66

 Highest Rate: MR3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.26 (7)    Behavior: 3.31 (7)                OTA: 3.43

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, MUC

 Days of Unauthorized Absence: 3

 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 :

880812:  NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongfully use cocaine and marijuana on 880706, (2) Wrongfully use cocaine and marijuana on 880728.
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to MRFN. No indication of appeal in the record.
880902:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go to appointed place of duty on 880819, to wit: extra duty assignment, (2) Unauthorized absence from 0730, 880822 until 0730, 880825 (3 days/surrendered).
         Award: Reduction to MRFA. No indication of appeal in the record.
880901:  Medical evaluation for alcohol dependence and drug abuse and found the Applicant to be alcohol dependent.
880902:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. [Extracted from Commanding Officer’s message dated 880930.]
880906:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from Commanding Officer’s message dated 880930.]
880930:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881019:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

881027:  Applicant declined VA treatment.

881018:  Applicant admitted to psychiatric due to suicidal ideation.

881028:  Inpatient disposition: Discharge diagnosis: Alcohol dependence, cannabis abuse, personality disorder, NOS, with borderline, dependent, and immature features.

890921:  Drug and Alcohol Abuse Report: Marijuana abuse. Random urinalysis 880930. Commanding Officer recommended separation via VA hospital. Comments: This report is submitted for record purposes only. SNM separated from Naval Service by administrative discharge prior to receiving results of positive urinalysis.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19881028 under other than honorable conditions for misconduct due to drug abuse (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 opines that personal and marital problems impaired her ability to serve and was a contributing factor in her misconduct of record. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which she was separated. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

Issue 2. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The Board commends the Applicant for her involvement in her local AA meetings, and the work that she conducts with the Foundation. 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. Normally, to permit relief, a procedural error or inequity must have been found to exist during the period of enlistment in question. The applicant provided three letters of recommendation, an Associates Degree diploma, and various computer-programming certificates, as documentation of her post-service. In order for the Board to consider clemency based on post-service conduct the Applicant could have produced evidence of continuing educational pursuits, additional documentation of community service, and certification of non-involvement with civil authorities and evidence of a drug free existence. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore, no relief will be granted


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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