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Docket No. ND05-00461

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

 ex-OSSA, USN
Docket No. ND05-00461

Applicant’s Request

The application for discharge review was received on 20050125.  The Applicant requests the characterization of service received at the time of discharge changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511.  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.  “I am disconcerted by my actions while serving in the Navy.  As I come of age, I realize my substantial mistake.  I feel I didn’t get the opportunity to redeem myself.  I served 2 years and eleven months, payed off my SGLI and had over two years of sea duty.  I reformed my ways and am being a positive role model for my son.  Thank you for your time.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980224 - 980315	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980316		Date of Discharge:  010219

Length of Service (years, months, days):

	Active:    02 11 04
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.33 (3)	Behavior:  2.00 (3)		OTA:  2.44

Military Decorations:  None

Unit/Campaign/Service Awards:  CGMUC, AFEM, SSDR

Days of Unauthorized Absence:  2

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:

980816:	Applicant reported to USS Constellation (CV-64).

990212:	Applicant to unauthorized absence 0500, 990212.

990214:	Applicant from unauthorized absence 0600, 990214 (2 days/surrendered).

990812:	Applicant to unauthorized absence 2359, 990812.

990813:	Applicant from unauthorized absence 0230, 990813.

991007:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 2359, 990812 to 0230, 990813, violation of UCMJ, Article 134:  Drunk and disorderly on 990812.
Awarded:  Forfeiture of $479 per month for 1 month, restriction and extra duty for 30 days, reduction in rate.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

000217:	Applicant unauthorized absence 0700-0730, 000217.

001227:	NAVDRUGLAB, San Diego, reported Applicant’s urine sample, received 001220, tested positive for cocaine.  Unit sweep urinalysis.

010111:	NJP for violation of UCMJ, Article 112a:  Wrongful use of cocaine.  Award:  Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

010116:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The least favorable characterization of service possible is Under Other Than Honorable Conditions.

010116:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010129:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010209:	Commander, Cruiser-Destroyer Group ONE directed Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010219:	DD Form 214: Applicant discharged 
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010219 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:  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 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 112a (wrongful use of a controlled substance), and 134 (drunk and disorderly) of the UCMJ. 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’s discharge characterization accurately reflects his service to this country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the Applicant’s enlistment.  Additionally, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s statements concerning post-service conduct, without documented evidence, were found not to mitigate the offense for which he was discharged.  Relief not warranted.

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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 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.