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Docket No. ND04-00886

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

ex-FR, USN
Docket No. ND04-00886

Applicant’s Request

The application for discharge review was received on 20040506.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance discharge review before a traveling panel closest to Baltimore, MD.  The Applicant did not list a representative on his DD Form 293.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised the board first conducts a documentary review prior to any personal appearance hearing.  Subsequently, the Applicant obtained representation from the American Legion.
	
Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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, 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.  “Dear Review Board,

     Upon my separation from the NAVY ON JANUARY 10, 2001 it has been very hard to get any job that would benefit my family and I.  For Almost All jobs you need a back - ground investigation.  My military discharge of Other than honorable conditions has held me back for over a year and a half.  I am writing the board to see if someone may be able to change my character of service to a general discharge.
     Some of my performance traits that were listed on my evaluation report and counseling record were totally wrong.  From my point of view none of my performances should have been below 2.0.  Performance trait 34 & 35 should been 3.0 and 36 should have been 2.0.  To me it looks like someone really didn’t want me to come home with at least a reasonable discharge.  I know that I was wrong For breaking my contract, but hopefully no one should want to ruin a young mans life at 22 years old.  I thank whoever person(s) that is reading my plea for a different discharge or upgrade.
     This brief report I am writing has deep meaning for my family and myself with out a better job it’s a no win situation please try and under stand.  Thank you, T_, I_ S.  FR

Submitted by Applicant subsequent to submission of application:

2.  “Dear NAVAL council:

     Thank you for accepting my review for an up-grade on my discharge.

     Since My discharge from the Navy my life has changed.  Now I realize how valuable the Navy’s training and knowledge is, and effective in everyday situation.  I’m trying to help anyone who I see who needs help and anyone who asks for my help as long as its legal.  Please reconsider my discharge for drug abuse.  My life has been clean for the past three years.  I deeply apologize for dishonoring the Navy’s core values of Honor, Courage and Commitment.

genuinely, (signed) I_ S. T_ (junior) (Applicant)

P. S.  
Mr. Zangas documents 4 and 5 are Notice of Hearing and Petition 18 august 2000 and Last Maryland Unemployment decision.”

The American Legion did not provide any issues.

Documentation

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

Evaluation Report & Counseling Record, date August 03, 2000  (2 pages)
Letter from The American Legion, dated June 15, 2004
Applicant’s Letter to The American Legion, undated  (4 pages)
Unemployment insurance appeals decision, dated May 27, 2004  (3 pages)
Temporary Appointment of Guardianship, dated July 16, 2000  (3 pages)
Special Power of Attorney, dated May 4, 2000  (3 pages)
Notice of Hearing and Petition, dated 2 August 2000

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000325 - 000329	COG
	Active:   			None			HON

Period of Service Under Review:

Date of Enlistment:  000330		Date of Discharge:  010110

Length of Service (years, months, days):

	Active:    00  09  11  (Does not account for lost time.)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  16

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

000325:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted.

001017:	Unauthorized absence from USS T ROOSEVELT at 0700 on this date.

001018:	Surrendered onboard USS T ROOSEVELT at 0800 on this date.  Absence not excused and charged lost time.

001023:	Unauthorized absence from USS T ROOSEVELT at 0700 on this date.

001024:	Surrendered on board USS T ROOSEVELT at 0630 on this date (absence for about 23 hours and 30 minutes).

001108:	Unauthorized absence from USS T ROOSEVELT at 0700 on this date.

001108:	Surrendered on board USS T ROOSEVELT at 1145 on this date (absence for about 4 hours and 45 minutes).

001109:	Unauthorized absence from USS T ROOSEVELT at 0700 on this date.

001121:	Surrendered onboard USS T ROOSEVELT at 0700 on this date.  Absence not excused and charged lost time.

001127:	Unauthorized absence from USS T ROOSEVELT at 0700 on this date.

001130:	Surrendered onboard USS T ROOSEVELT at 1430 on this date.  Absence not excused and charged lost time.

001205:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from unit (12 days), violation of UCMJ, Article 112A:  Wrongful use of marijuana.
	Award:  Forfeiture of $502.00 per month for 2 months, restriction for 45 days.  No indication of appeal in the record.

001205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

001205:	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.

001212:	Applicant decline drug treatment prior to release from active duty military service.

001218:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  “(1) Through misconduct which includes drug abuse, FR T_ (Applicant) has demonstrated an inability to adapt to the Navy’s environment or live up to our standards of performance and personal conduct.  Based upon the seriousness of the offenses I believe that FR T_ (Applicant) has no potential for further naval service and recommend he be separated from the Navy with an Other Than Honorable discharge.  (2) FR T_ (Applicant) has been advised that he will be required to repay his enlistment bonus.  He acknowledged this requirement and stated that he is willing to repay that amount.  The final amount of repayment will be determined by Defense Finance Accounting Service upon their receipt for FR T_ (Applicant) DD 214.”

010103:	Commander, Carrier Group Eight authorize 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 20010110 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).

Issues 1 & 2:  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 discovered no impropriety or inequity and considers the Applicant’s discharge proper and equitable.  This issue does not serve to provide a foundation upon which the Board can grant relief.   

A service characterization 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) for illegal drug use and unauthorized absence.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and falls short of that required for a discharge upgrade.  It must be noted most Sailors serve honorably; thereby, earning their honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to general (under honorable conditions) would be inappropriate.  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.  However, the NDRB is authorized to consider outstanding 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.  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, documentation of community service, and certification of non-involvement with civil authorities , and credible evidence of a substance-free lifestyle are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.
 
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 additional documentation to support any claims of post-service accomplishments 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 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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

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.