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NAVY | DRB | 2004_Navy | ND04-00556
Original file (ND04-00556.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00556

Applicant’s Request
The application for discharge review was received on 20040223. 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, 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 advised the Board
to continue with a record review.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922. 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 4-1 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

 Applicant’s issues, as stated on the application:

1. “MY DISCHARGE WAS INEQUITABLE BECAUSE IT WAS BASED ON ME BEING WRITTEN UP BY MY CLASS COUNSELOR WHEN I CAME TO ASK HIM ABOUT COUNSELING FOR DRUGS. HE SHOULD HAVE DIRECTED ME TO THE DRUG COUNSELOR ON BASE. AT THIS TIME HE DID NO KNOW WHAT I WANTED TO DISCUSS ABOUT DRUGS AND SHOULD HAVE DIRECTED ME TO THE BASE DRUG COUNSELOR BUT THIS DIDN’T HAPPEN. HE BEGAN QUESTIONING ME ON DRUGS. HE THEN WROTE ME UP AND I WAS PROCESSED OUT WITH AN O.T.H. IF I WOULD HAVE BEEN ABLE TO SPEAK TO THE DRUG COUNSELOR FIRST MY CASE WOULD HAVE HANDLED DIFFERENTLY. THE DRUG COUNSELOR TOLD ME HE WOULD HAVE MADE THE REPORT WITH ME COMING FORWARD I WOULD NOT HAVE BEEN GIVEN AN O.T.H. SO WHEN REVIEWING MY CASE PLEASE NOT THAT IF I WOULD HAVE BEEN COUNSELED CORRECTLY, I WOULD HAVE SPOKEN TO THE DRUG COUNSELOR ABOUT THIS FIRST THUS AVOIDING BEING WRITTEN UP BY MY CLASS COUNSELOR. ALL I AM ASKING IS FOR THE CHANCE TO BE A BETTER FATHER, PROVIDER AND AMERICAN CITIZEN AND YOU HOLD THE KEY.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Ltr from Applicant dtd 040315
Ltr from employer dtd 040304
Ltr from R_ O_ dtd 040303
Ltr form T_A_P_ dtd 040309
Picture, undated
Records check for County of Los Angeles dtd 040304
Three pages from Applicant’s service record
Cal State Poly, Ponoma transcript, undated
East LA College transcript dtd 020310

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870812 - 871207  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 871208               Date of Discharge: 890317

 Length of Service (years, months, days):

         Active: 01 03 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 77

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)    Behavior: 3.30 (2)                OTA: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

871228:  Counseling: I am advised that I have been identified through urinalysis testing to be a drug abuser. I understand that effective this date, that I will be placed on a drug urinalysis surveillance program and tested on a regular basis… I further understand that a second drug abuse incident will result in immediate processing for separation from the naval service.

880310:  DAAR: Substance: Marijuana, ashore off-duty, service directed.

880831:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
880915:  Medical evaluation for drug abuse. Self-referred, use confirmed, dependent. Recommend separate via VA Hospital.

880919:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by drug abuse.
880919:  Applicant advised of 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 and to submit a statement.

880923:  DAAR: Substance: Cocaine, self-referral, ashore, off-duty, 1-3 times per week.
881104:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: [SR O_ reported onboard this command for a student in July 1988. On 23 August 1988 he admitted use of cocaine and was placed in the Command-Directed Urinalysis Test Program… He has been diagnosed as drug-dependent, and not amenable to counseling/education/rehabilitation, by a medical officer.]

890205:  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 19890317 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 drug counselor told me he would have made the report with me coming forward. I would not have been given an O.T.H.” The Applicant was counseled for a positive urinalysis in December 1998 and placed on a drug urinalysis surveillance program. There is evidence that he subsequently used cocaine and was not amenable to treatment. Separation under these conditions generally results in characterization of service under other than honorable conditions and 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.

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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Additionally, 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.


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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