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NAVY | DRB | 2003_Navy | ND03-01336
Original file (ND03-01336.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-01336

Applicant’s Request
The application for discharge review was received on 20030807. 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 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 20040526. 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 (Trafficking), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I was told that my discharge would be upgraded to general 1 year after my discharge. I was told this that is why I agreed to this discharge – so I wish you would keep your end of the deal.”

 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)     880318 - 880327  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880328               Date of Discharge: 890420

 Length of Service (years, months, days):

         Active: 00 11 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11 GED           AFQT: 68

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (1)    Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 33

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Trafficking), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

880331:  Applicant briefed on Navy's policy of drug and alcohol abuse.
880922:  CID Report of Investigation.

880930:  Drug and Alcohol Abuse Report: Marijuana possession, abuse and trafficking, one to three times a month, ashore off-duty. Military police on 880805. Comments: Members military workrecord has been average. Command awaiting completion of CID investigation.

881013:  NJP for violation of UCMJ, Article 112A. Wrongfully possess/distribute/ use marijuana; a controlled substance on 880730-880804.
         Award: Forfeiture of $140.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
881027:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Art. 112a, wrongfully possess/distribute/use marijuana, a controlled substance.
881031:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

881201:  Mental Status Evaluation for Drug/Alcohol abuse: Counselor found that the Applicant to be a Cannabis/Alcohol abuser. Applicant is currently non-dependent on alcohol/drugs. Track II for Applicant’s benefit and education. Urinary surveillance to confirm client’s abstinence from illicit drug usage.

890110:  Applicant to unauthorized absence on 2359, 890110.

890112:  Applicant to unauthorized absence on 1945, 890112 (1 day/surrender).

890111:  Drug and Alcohol Abuse Report: Marijuana abuse, possession, trafficking. Military police on 880805. Physician found Applicant not dependent and recommended level II treatment. Commanding Officer recommends separation. Comments: Member’s military workrecord has been average. Command awaiting completion of CID Investigation.

 890222:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to wrongful possession, distribution, and use of marijuana, a controlled substance, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

 890302:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700-0723, 890216.
         Award: Restriction and extra duty for 10 days. No indication of appeal in the record.
890306:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: I concur with the findings and recommendations of the Administrative Board. R_ D_ (Applicant) was transferred to NETC TEMDU for separation processing from NAVTECHTRACENDET, Fort Devens, MA, based misconduct due to drug abuse (enclosure (7) refers). He requested and Administrative Discharge Board, which recommended separation with an Other Than Honorable Discharge. During the short period of time on board NETC, his attitude and conduct has been less than cooperative; and he has had to be supervised more closely than other members assigned to his division. On 2 March 1989 he was taken to Captain’s Mast for a short unauthorized absence. This was the culmination of a multitude of minor violations of the UCMJ, which administrative actions did not correct. He was screened for drug and alcohol dependency by a U.S. Army doctor at Fort Devens and found not to be dependent on drugs or alcohol. It is strongly recommended that R_ D_ (Applicant) be separated with an Other Than Honorable Discharge now. He will retained on board pending decision in his case.

890315:          Applicant to unauthorized absence on 1245, 890315.

890317:  Applicant declared manifest deserter.

890323:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (trafficking).

890417:  Applicant apprehended by civil authorities at 2125, 890417 returned to military control at 2133, 890414 (32 days/apprehended).

890419:  Applicant offered in-patient treatment at VA hospital. Applicant did not desire treatment prior to separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890420 under other than honorable conditions for misconduct due to drug abuse (trafficking) (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 states that he was told that after one year he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after one year. Additionally, Applicant provided no credible evidence, nor is there any in the record, that authorities in his chain-of-command provided information to the contrary. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions, thus substantiating the misconduct for which he was separated. Drug abuse warrants processing for separation, normally under other than honorable conditions. 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. E vidence 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. The Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.

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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