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NAVY | DRB | 2004_Navy | ND04-01048
Original file (ND04-01048.rtf) Auto-classification: Denied


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

ex-PNSN, USN
Docket No. ND04-01048

Applicant’s Request
The application for discharge review was received on 20040616. 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. 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. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041103. 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

 Applicant’s issues, as stated on the application:

1. “I voluntarily approached the command alcohol abuse counselor, which resulted in a positive urinalysis. I was seeking help for an alcohol problem and tested positive for drugs upon entering rehabilitation. I was lead to believe that because I was in rehabilitation voluntarily that this positive urinalysis could not be used against me upon separation. Please review my service record and evaluation in full, I believe I served honorably, but made a mistake of youth, I was attempting to receive help during my 4 years of service.”
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)     850419 - 850609  COG
         Active:                            None

 Period of Service Under Review :
Date of Enlistment: 850610               Date of Discharge: 890608

 Length of Service (years, months, days):

         Active: 03 11 29
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rate: PN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.84 (5)    Behavior: 3.60 (5)                OTA: 3.88

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR, SSDR, CGSOSR

 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 :

870417:  Positive screen for cocaine [extracted from medical record entry dated 890511].

870422:  Applicant diagnosed psychologically dependant on alcohol, recommended for Level III treatment.

871027:  Retention Warning: Advised of deficiency (Alcohol abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890126:  Applicant completed Level II treatment. Due to a positive urinalysis for cocaine during treatment, recommend Level III treatment.
890501:  NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 890421, tested positive for [cocaine].

890504:  NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine, a schedule II controlled substance.
Award: Forfeiture of $466.70 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal.
890504:  DAAR indicates cocaine abuse as a result of a random urinalysis, dependency not determined, recommended for separation via VA hospital.
890511:  Medical evaluation for drug and alcohol indicates Applicant is physically qualified to perform his duties, and may be considered to be drug and alcohol dependent. Drug and alcohol abuse was confirmed by clinical evaluation, Applicant does not require detoxification. Recommend administrative separation.
890516:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by an NJP on 890504 for wrongful use of a controlled substance.
890523:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890531:  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.

890601:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: [I agree with the Board’s finding and recommendations. The recent drug abuse incident, for which he received nonjudicial punishment, is [Applicant’s] second incident of drug abuse in his current enlistment. He has clearly violated the Navy’s regulations and the zero tolerance policy on the abuse of drugs.]

890606:  Applicant declined treatment at VA hospital.

890606:  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 19890608 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. There is credible evidence in the record that the Applicant used illegal drugs more than once during his enlistment. Medical records indicate that he tested positive for cocaine on 17 April 1987 during his alcohol treatment drug screen. On 26 Jan 1989 he was recommended for Level III treatment for a positive urinalysis for cocaine during Level II treatment. The Applicant’s urine sample provided on 21 April 1989 also tested positive for cocaine. 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.

The Applicant submits that he voluntarily approached the command seeking rehabilitation and that his positive urinalysis, therefore, could not be “used against him upon separation.” The Applicant’s allegations are not supported by the record and do not refute the presumption of regularity in this case. 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. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


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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