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Docket No. ND04-00394

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

ex-SR, USN
Docket No. ND04-00394

Applicant’s Request

The application for discharge review was received on 20040105.  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 listed American Legion as the representative on the DD Form 293.

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 unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “THE REASON FOR THIS APPLICATION IS BECAUSE I AM AT A POINT IN MY LIFE WHERE I WANT TO BE MORE OF A LEADER AAND BLEONG TO AN ORGANIZATIONAT THE SAME TIME.  IF GIVE AN UPGRADEOF MY DISCHARGE THIS WILL HELP MY FINANCIAL SITUATION WITH COLLEGE AND GIVE ME SOME RELIEF FROM MY FINANCIAL BURDENS WHILE I PURSUE MY MASTERS DEGREE IN PHYSICAL THERAPY.”

2.  “Dear Sir or Madam,

I am asking for the upgrade of my discharge in regards to furthering my career with my life as I pursue my educational goals in school.  It would relieve a lot of stress off of my load because I have thought about my discharge every since the day of March 23, 1998.  I have been told that this is a very complicated task to get done with specific guidelines to follow.  The reason being is because I feel that I could be an outstanding sailor once again if given the opportunity to prove myself I have learned from the mistake that was made and how someone surrounding can influence their career and that person as an individual.  While in the Navy, the compliance with orders given by superiors was not a problem.  I didn't have any grievances besides the altercation of associating with the wrong crowd while doing my term.  While doing my duty: I received a Letter of accommodation in regards to the Watertight Integrity of the USS Gamden A QE-2 from Captain J_, Extensive training to become a SAR swimmer, Supervision of shipmates as Damage Control seaman on deck and PMS crew, Received a Certificate of Completion in regards to Ventilation Systems aboard Navy s/i/ps, along with great PT scores.
There are other aspects but I don’t want to sound unrealistic because of the mistake that I made while doing my duty.  This haunts me everyday because I have always felt the need to finish whatever I have started.  I never got the chance to finish my career with the Navy and would like to be given the chance to do so.  As I have matured in life, I realized a lot of things and how important things have become.  I am a father of a 19-month son and the only thing I want to do is make my son proud and provide a life for him.  The Navy instilled some qualities in me that have helped me in my everyday life from Attention to Detail to the smallest aspect under the microscope.
I am attending community college in Auburn and I participate on the basketball team.  I am in great shape at the age of (24).  I decided to go to school after I was laid-off due to company downsizing from this recession accompanied by the September 11th catastrophe.  My GPA is currently a 3.4 and look forward to the future in school but I think of the Navy.  It gives me unease grief to always think about what I could have been while in the service if I would have chosen my surrounding a lot more carefully.  I would love to be given the opportunity to serve my country again in the Navy.  I have this passion for the sea and a Sailor’s life would be something that would be taken very seriously.  I know if given the opportunity, I would become an outstanding sailor because a day hasn‘t gone by for the last 4 years without me thinking of being underway and protecting my fellow citizens.  If not given the opportunity to rejoin and apply my skills, please upgrade my discharge so that I can go along the road to success with my education and become an outstanding citizen as I have been in my community.

Respectfully,
L_ R_ S_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

3. “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the service record reflects that this former member was awarded a single NJP on 980227 for VUCMJ, Arts. 92, 112a.  Following due process notifications, he was discharged General (Under Honorable Conditions) due the misconduct as authorized by NAVMILPERSMAN, Art. 1910-700.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he would like to become a more productive citizen and if possible reenter the Navy.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960807 - 960929	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960930		Date of Discharge:  980319

Length of Service (years, months, days):

	Active:    01  05  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

* No Marks Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:
 
961001:	Retention Warning:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings.  

980227:	NJP for violation of UCMJ, Article 92:  failure to obey a lawful general order, violation of UCMJ, Article 112a: wrongful possession and use of drugs (marijuana).
	Award:  Forfeiture of $519.00 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

980227:	Applicant notified of intended recommendation for discharge under other than general (under honorable conditions) by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

980227:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980304:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse and commission of a serious offense.  

980316:	Commander, Naval Surface Group Pacific Northwest directed the Applicant's discharge general (under 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 19980319 under general (under 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).

Issues 1-2:  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.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

Issue 3:  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.  However, 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 any 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.  Evidence of continuing educational pursuits, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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.