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NAVY | DRB | 2004_Navy | ND04-00156
Original file (ND04-00156.rtf) Auto-classification: Denied


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


ex-DC2, USN
Docket No. ND04-00156

Applicant’s Request
The application for discharge review was received on 20031029. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040720. 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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. My discharge was inequitable because it was based on 1 (one) failed urinalysis, after serving 6 yrs & 3 mos with exceptional evaluations.

2. Administrative hearing closing lawyers statements made reference to “crack” “babies” & “crack users” being the result of 1 use of marijuana by me, J_ P. S_ (Applicant) were unfair, unjust and defamation of my character, as I am not a drug abuser, civilian or military, as my records show.

3. DD 214 shows misconduct, OTh discharge and my first enlistment was honorable, but that is not shown. I believe a unbiased review of my record would show I deserve an honorable discharge.

4. Unjustly impedes employment opportunities, due to misconduct relates to my being a drug abuser, I admit my costly mistake of being on leave and making a bad decisions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Deficiency dtd 5 Jul 96
Character Reference dtd 31 May 96
 Character Reference dtd 28 Jun 96
 Ltr of Commendation
Person of the Month Certificate
 Twenty-six pages from Applicant’s service record
Letter from Applicant, dated 26 Nov 03
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891024 - 891218  COG
          Active: USN                        891219 - 930930  HON

 Period of Service Under Review :
Date of Enlistment: 930930               Date of Discharge: 970103

 Length of Service (years, months, days):
         Active: 03 03 03
          Inactive: None
Age at Entry: 24                          Years Contracted: 5

 Education Level: 12                        AFQT: 35
Highest Rate: DC1

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 4.00 (4)    Behavior: 4.00 (4)                OTA: 4.00        4.0 evals
 Performance: NOB                  Behavior: 1.00 (1)                OTA: 1.00        5.0 evals

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, JMUA, SSDR (2), SASM (2), NAM (2), BER, GCM, MUC
Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.
Chronological Listing of Significant Service Events :

890807:  Applicant briefed on Navy policy on alcohol and drug abuse
960321:  NAVDRUGLAB, Great Lakes, IL reported Applicant’s urine sample, received 960311, tested positive for THC.
960327:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 960224, to wit: THC.
         Award: Reduction to DC2. No indication of appeal in the record.
960409:  Applicant found dependent on alcohol and recommended for Level III treatment.
960410:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents.
960410:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960501:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Random urinalysis on 960321. CAAC recommended Level III treatment. Physician found the Applicant not dependent and recommended Level III treatment. Comments: Petty Officer S_ (Applicant) made a decision in his personal life that amounted to misconduct under the UCMJ. He was awarded nonjudicial punishment for violation of Article 112A of the UCMJ. He is also fully responsible and accountable for his actions in violating the Navy’s drug policy. He made a decision that has effectively ended his career.

960703:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960802:  Commanding Officer recommended Honorable discharge by reason of misconduct due to drug abuse (use).
961101:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

 961125:  Applicant to Alcohol Rehabilitation Center.

961220:  Applicant completed alcohol rehabilitation and signed the recommended aftercare plan on 970102.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970103 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).
Issues 1 and 3. The Applicant states his discharge was based on one “failed urinalysis, after serving 6 yrs & 3mos.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

Issue 2. The Applicant’s assertions, that “lawyers statements made reference to “crack” “babies” & “crack users”” and that he was “not a drug abuser” were not supported by the evidence of record and were not found to mitigate the Applicant’s misconduct. There is credible evidence in the record that the Applicant used illegal drugs and the Drug and Alcohol Abuse Report of 1 May 1996 identifies the Applicant as a drug abuser. 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 his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 4. The Applicant’s contention, that his discharge “impedes employment opportunities” is not an issue upon which the board can grant relief. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT 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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