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Docket No. ND04-00243

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

ex-DCFA, USN
Docket No. ND04-00243

Applicant’s Request

The application for discharge review was received on 20031125.  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, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728.  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.  “Dear Honorable Board Members,

I am writing to you to request an upgrade of my discharge. First, I would like you to know that I loved, and was very proud to serve my country. I would sacrifice my life for this country and to protect our freedom. I made mistakes upon returning from Desert Shield, getting involved with the wrong group of people. I would give anything to be able to change this. I am deeply ashamed and truly regretful of my actions at that time. I acknowledge that the fault was my own.

Since returning home, I have gone through rehabilitation and am happy to say I have been clean and sober for more than ten years. I have worked hard and I am blessed to have the support of a loving family. I love my country and would gladly serve again if I could. My heart is with our brothers and sisters overseas.

I am asking for a General under Honorable conditions discharge. Despite the way my service ended, serving in the military was the greatest and most satisfying experience I have ever had. I can only add that I believe I have grown to be a better, more disciplined person, and that serving in the military greatly contributed to that growth. I am a proud American who made a mistake. I will gladly accept whatever you decide for me. Attached are my certificates and awards for your consideration.”
Sincerely,

B_ T_ G_ III _, (Applicant)
SS#_

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Reference of character from B_ T_ G_ jr._, dated November 15, 2003
JPFD Fire Training certificate of LSU certified Firefighter I
Fire training certificate, dated August 16, 1985
Honor certificate from Recruit training command
Certificate of Merit from NTTC
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	880829 - 880914	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  880915		Date of Discharge:  900119

Length of Service (years, months, days):

	Active:    01  04  05
	Inactive:  None

Age at Entry:  29			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rate:  DCFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA*		OTA:  NMA*

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM

Days of Unauthorized Absence:  None

*No marks found in Applicant’s service record.

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:

880829:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890110:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
Award:  Forfeiture of $100 per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

891215:	NJP for violation of UCMJ, Article 112a  Wrongful use of a controlled substance, violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $350.00 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFA.  No indication of appeal in the record.

891218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by Commanding Officer’s NJP.

891220:	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.

891227:	Retention Warning:  Advised of deficiency (wrongful use of a controlled substance, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891227:	Medical evaluation revealed that member is psychologically dependent on cocaine.  He joined the navy to help out his family’s financial situation and couldn’t afford to bring his family to San Diego.  He became depressed and started to use cocaine again.
		[Extracted from Commanding Officer’s message dated 891228.]

891228:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and due to commission of a serious offense.  Commanding Officer’s comments:  Since reporting to USS BUCHANAN in September 88.  DCFA G_ (Applicant) has displayed a total lack of motivation and desire to excel.  He requires constant supervision to accomplish even the smallest of tasks.  He has been repeatedly counseled on his performance.  Military bearing, and responsibilities DCFA G_ (Applicant) was offered assistance with his substance abuse.  However each time he has failed to follow through with actions recommended.  He has been offered treatment VIA the 30 day VA inpatient treatment plan and declined treatment.  His continued cocaine use coupled with his substandard military performance renders him totally unsuitable for further naval service.  I strongly recommend that he be discharged from the Navy and that the characterization of his discharge be other than honorable.

900105:	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 19900119 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.  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.

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 two nonjudicial punishment proceedings for three violations of the UCMJ to include violations of Article 112a for illegal substance use and Article 86, for unauthorized absence.  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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.