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NAVY | DRB | 2006_Navy | ND0600014
Original file (ND0600014.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ATAR, USN
Docket No. ND06-00014

Applicant’s Request
The application for discharge review was received on 20050920. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.

 Decision


A personal appearance discharge review was conducted in Washington, D.C. on 20061023. 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 to 1 that the character of the discharge and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the applica nts Statement of issues dated October 23, 2006 :
“I Request my d ischarge b e up-graded t o a General Discharge Based on “ Equitable Relief ”. I have submitted various Letters and d ocuments that support m y contentions; I h ave changed; m y judgment & character have stabilized. I have completed AA program a nd r emain s ober 4 1/2 yrs. I attend 3-4 AA meetings weekly. I have b ecome r e sponsi ble a nd have contributed t o society a nd h ave been p roductive the p ast 5 years. I p resently take a course a t Los Angeles Valley Community College. Work Full-Time, a nd a ttend AA 3-4 Times per week. I have v olunteered with AA a nd assisted other AA Members work on substance a buse.


Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s statement, dtd September 5, 2005
Page titled ESR and OPNAVINST documents
Applicant’s DD Form 214
Two pages from OPNAVINST 5350.7, dtd January 10, 1992
Drug and Alcohol Abuse Report, dtd October 6, 1989 (2 pages)
Two pages from Applicant’s medical record, dtd April, 04, 1990
Administrative remarks page, dtd October 6, 1990
Page titled Navy Letters and Certificates
Letter of Commendation, dtd December 12, 1988
Honor certificate, dtd December 14, 1988
Certificate of completion, dtd December 14, 1988
Enlisted Performance Evaluation Report for period ending December 14, 1988 (2 pages)
Letter of appreciation, dtd August 14, 1989
Page titled Recovery based certificates and letters
Letter from Y_ R. H_, Admissions Coordinator, Warm Springs Rehabilitation Center, dtd December 27, 1999
Certificate of completion of Alcohol/Chemical Dependency Program, dtd January 2, 2000
Volunteer recognition certificate for October 20, 1999 to December 30, 1999
Certificate of completion of language improvement program, dtd December 28, 1999
Certificate of completion of language improvement program (tutor), dtd December 28, 1999
Page titled Professional references
Employment verification from A_ A_, dtd October 2, 1995
Page from Internet Movie Database (7 pages)
Congratulations letter on promotion to position of Store Manager, L_ S_ P_ S_, dtd February 17, 2003
Letter from M_ S_, L_ S_ P_ S_, dtd August 27, 2004
Annual Performance Evaluation for 2003 (4 pages), dtd March 31, 2004
Employment verification from A_ C_, Jr., CEO of Alingo Computers, Inc., dtd August 22, 2005
Page titled Personal references
Character Reference from J_ M_, Senior Account Executive, Daylight Transport, dtd September 5, 2005
Character Reference ltr from R_ A. Q_, Sr. Scientist, Research and Development, Teva Pharmaceuticals, dtd September 6, 2005
Character Reference ltr from J_ A. S_, Administrator, ALH Inc, dtd August 24, 2005
Character Reference ltr from K_ M_, dtd September 3, 2005
Character Reference ltr from C_ W_, Applicant’s mother, dtd September 8, 2005
Character Reference ltr from Rev. W_ H. P_, St. Luke’s Lutheran Church, dtd September 12, 1995
 Character Reference ltr from M_ L. R_, dtd October 14, 2006
 Letter from R_ S_, Certified Sr. Escrow Officer of The Escrow Merchants, dtd November 24, 2004
Washington Mutual lender’s closing instructions, dtd November 18, 2004
Letter from T_ W_, President, WFS Financial, dtd January 7, 2005
Rancho Santiago Community College District academic record, dtd August 25, 2005 (2pgs)
American Red Cross E-mail, dtd September 1, 2005
 Congressional Letter from Congressman B _ S _, dtd October 11, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19880218 - 19880424      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19880425             Date of Discharge: 19901006

 Length of Service (years, months, days):

         Active: 02 05 12 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 4 days
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 88

 Highest Rate: ATAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (2)                       Behavior: 2.0 (2)                 OTA: 2 .80
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

880217:  Applicant signed acknowledgement of drug abuse program.
890610:  Applicant to unauthorized absence at 0700 on 890610.

 890612:  Applicant from unauthorized absence at 1540 on 890612 (2 days/surrendered).

 890614:  Positive urinalysis for amphetamine/methamphetamine. (extracted from DAAR 890614
890724:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 890714, tested positive for amphetamine/methamphetamine.

 890725:  Applicant on unauthorized absence 0700-1030, 890725.

 890728:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 890721, tested positive for amphetamine/methamphetamine/ marijuana.

 890728:  NJP for violation of UCMJ, Article 86: Unauthorized absence without authority 2 specs.
         Specification 1: Absent from organization on or about 89Jun10 until on or about 89Jun12.
         Specification 2: Absent from organization on or about 0700, 89Jul25 until on or about 1010, 89Jul25
 Violation of UCMJ, Article 112a: Wrongful use of a controlled substance to wit amphetamine/methamphetamine on or about 89Jun14.
          Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to ATAR. No indication of appeal in the record.

890828:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.
890831:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
891006:  Drug and Alcohol Abuse Report: Amphetamines abuse. Unit sweep urinalysis on 890614. Commanding Officer recommended separation via VA hospital. Comments: SNM has no potential for future service.

900125:  Drug and Alcohol Abuse Report: Marijuana abuse and possession . Law enforcement: Military police on 900124. Commanding Officer recommends separation via VA hospital. Comments: Awaiting NJP. SNM has no potential for future service.

 900330:  NJP for violation of UCMJ, Article 112a (2 specs):
 Specification 1: Wrongful use of a controlled substance to wit amphetamine/methamphetamine on or about 900124.
Specification 2: Wrongful use of a controlled substance to wit amphetamine/methamphetamine on or about 900312.
Adcharge: Violation of UCMJ Art 112a: Wrongful use of a controlled substance to wit amphetamine/methamphetamine and marijuana on or about 90Mar14.
         Award: Forfeiture of $350 per month for 2 months, restriction and extra duty for 45. No indication of appeal in the record.
900404:  Medical evaluation at Branch Medical Clinic:
         Drug and alcohol screening prior to admin sep.
          Assessment:
         1: Amphetamine use - psychological dependency (primary problem).
         2. Alcohol dependency developing.
         Plan:
         1. Recommend Level III VA rehab (if separated from the Navy) - primary dependency is amphetamine.
         2. RTC prn.
900405:  Drug and Alcohol Abuse Report: Marijuana abuse, 1-3 times per week, ashore off duty. Law enforcement: Military police on 900124. Physician (MD) found Applicant dependent and recommended separation via VA hospital. Commanding Officer recommended separation via VA hospital. Comments: IAW OPNAVINST 5350.4A SNM has no potential for future service and should be processed for separation.

 900405:  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
900405:  Administrative Discharge Board recommendations signed
900705:  Commanding Officer, Naval Air Station Miramar, San Diego, CA, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse. Commanding Officer’s comments: “ATAR O_(Applicant)’s failure to comply with CNO drug policy exhibits a significant departure from the conduct expected from members of the naval service. Request that he be discharged at earliest possible date with an other than honorable discharge.”

900717:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

 900806:  Applicant to unauthorized absence at 0700 on 900806.

 900807:  Applicant from unauthorized absence at 0710 on 900807
         (1 day/surrendered).
900814:  Drug and Alcohol Abuse Report: Marijuana abuse, 1-3 times a week, ashore off duty. Law enforcement: Military police. Physician (MD) found Applicant dependent and recommended separation via VA hospital. Commanding Officer recommended separation via VA hospital. Comments: SNM is being transferred to La Jolla VA Medical Center, 3350 La Jolla Village Dr., San Diego, CA, 92161 on 900906 for treatment and will be discharged from naval service. Discharge authorization: CNMPC msg R 172000Z Jul 90.

 900829:  Applicant to unauthorized absence at 0700 on 900829.

 900830:  Applicant from unauthorized absence at 0722 on 900830 (1 day/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19901006 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found by a vote of 4 to 1 that the discharge was proper and equitable (C and D).

The Applicant requests an upgrade to his characterization of discharge to honorable.
When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by 2 non-judicial punishment proceedings for violations of UCMJ Articles 86 (absent without leave) and 112a (wrongful use of a controlled substance). The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. A violation of Article 112a is considered a serious offense and typically a punitive discharge is authorized if adjudged at a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant requests an upgrade to his characterization of discharge based on post service equity. The following is provided for the edification of the Applicant. 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 by a vote of 4 to 1 that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. 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 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a wrongful use of a controlled substance.

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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