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NAVY | DRB | 2004_Navy | ND04-00919
Original file (ND04-00919.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND04-00919

Applicant’s Request
The application for discharge review was received on 20040511. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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

 No issues were submitted by the Applicant.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Service Related Documents (3)
Copy of Certificate of Completion (Alcohol and Drug Abuse Prevention Education) dated April 30, 1990

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890310 - 890315  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890316               Date of Discharge: 910514

 Length of Service (years, months, days):

         Active: 02 01 25
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

Education Level: 12      (GED)             AFQT: 52

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.66 (3)    Behavior: 2.60 (3)                OTA: 2.73

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 5

 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 :

890719:  NJP for violation of UCMJ, Article 81: On or about 890629, did make a false official statement, violation of UCMJ, Article 86: On or about 0620, 890703, did without authority absent himself from his organization and did remain so until 0745, 890704, violation of UCMJ, Article 107: On or about 890619, did try to deceive a Petty Officer by making a false statement.
Award: Forfeiture of $163.00 pay per month for 1 month, restriction to SSC NTC for 14 days, extra duty for 14 days. No indication of appeal in the record.
890719:  Retention Warning: Advised of deficiency (You were found guilty at OIC’s NJP this date of: Violation of the UCMJ, Article 107: Making false official statement, violation of the UCMJ, Article 81: Conspiracy, and violation of the UCMJ, Article 86: Unauthorized absence for a period greater than 24 hours), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
901130:  NJP for violation of UCMJ, Article 86: Absent himself from his unit for a period of 15 ½ hours.
         Award: Forfeiture of $100.00 pay per month for 1 month (suspended for 6 months), reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

901216:  Arrested by San Diego Police Department (Arrest NR PD968NST) for wrongful use of controlled substance (cocaine). Tested positive for cocaine by San Diego Poison Lab Test (NR. 0-9017448 DTD 901219).
         Action by Civilian Authorities: Case pending, continued to 910621. Case NR M616992.

910203:  Arrested by Honolulu, HI Police Department for operating a motor vehicle while drunk, Operating a motor vehicle without driver’s license, and operating motor vehicle with radio too loud during prohibited noise hours. Release on $200.00 bail, turned over to Provost Marshall, FT Shafter, HI
 Action by Civilian Authorities: No official notification received by ORIG, SNM stated 910407 he failed to appear at hearing, warrant for arrest probable.
910312:  Unauthorized absence from USS INGRAHAM at NAVSTA Long Beach.

 910316:  Surrendered on board USS INGRAHAM at NAVSTA Long Beach (4days/S).
910322:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to alcohol and drug abuse as evidenced by one alcohol and one drug incident.
910322:  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 the right to submit statements on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative board is not convened. Member did object to the separation.

910402:  Medical evaluation for alcohol abuse found the Applicant to be alcohol dependent, not recommended for further service.

910405:  DAAR indicates alcohol abuse, abuse identified by civilian police, found alcohol dependent, not eligible for treatment, recommended for separation not via VA hospital. [Extracted from CO’s message]

910408:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to alcohol and drug abuse.

910428:  Complaint of taking an excessive amount of pills in an attempt to get off the ship. Patient 29 Y/O Black Male states that he is currently on 45 days restriction and is in the process of being discharged. Patient states that he can’t take it anymore and he wants out. Patient states suicidal/homicidal tendencies. Patient took #8 Tylenol 325MG, #6 Entex, #4 Motrin 800MG, and #2 Tylenol 3. [Extracted from Medical Record]

910506:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910514 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).

The Applicant did not introduce any decisional issues for the Board’s consideration. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three separate occasions for violating the UCMJ, Articles 81, 86 and 107 and civilian arrest for wrongful use of cocaine, drunk driving, driving without a license and operating a motor vehicle with the radio too loud thus substantiating his misconduct. Drug abuse warrants processing for separation, normally under other than honorable conditions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a honorable characterization of service. 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. Verifiable proof of 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. At this time, the Applicant has not provided any documentation for the Board to consider an upgrade.

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 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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