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Docket No. ND05-00471

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

 ex-AN, USNR
Docket No. ND05-00471

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 be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050519.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was arrested in Tijuana, Mexico on 94MAY11 and charged with possession of marijuana to sell.  I never had any illegal substances on myself or my vehicle, like the Mexican Authorities claim.  I was arrested as a payback by my ex-girlfriends father for breaking up with her while she was pregnant.  After I was arrested and tortured for a couple of hours the Mexican police asked me to pay them $5,000 for my release.  I asked them to give me some time, but when I had the money from my family they decided to ask for $10,000 this amount kept getting bigger as the days went by until it reached the amount of $35,000 when my family said enough.  I informed the US Navy Military Police and staff personnel from the US Consulate about the situation.  The only answer was “we are going to talk to the proper authorities about this”.  They did and the only thing I received in return was a beating for about 4 hour’s, I don’t remember much except passing out after a guard hit me with a button right across the face.  I spent the next 3 years in a Mexican jail, only getting help from my family and friends with the occasional visit from he US Navy Military Police and US Consulate staff I stopped asking for help from the US government, because every time they helped me, I either got a beating or the Mexican authorities delayed my case, even the Mexican lawyers provided by the Consulate.  These lawyers went as far as to ask my family for money to help out with the expenses, my family gave them money, only to realize after speaking with the US Consulate, they cover all expenses.  These same lawyers asked me to plead guilty to the charges.  This is when I said enough and asked my parents to hire a lawyer for me.  The new lawyers started to work on my case on 96JUN and had me out of prison by 97FEB after my parents paid a Mexican Judge a $50,000 bribe for my release.  When I advised the US Navy about my pending release I was informed by them and the Mexican authorities I would be handed over to the US Navy Military Police for further processing and possibly a court martial with jail time.  After being locked up in a Mexican prison for more than 3 years, I refused to spend more time locked up or processed for anything else.  Without any consultation and not realizing what my rights were, I asked to be discharged from the US Navy while still inside of a Mexican prison.  I was released on 97FEB 12, and have spent the last couple of year’s putting my life back together, have started going to school and working.  I did not realize that I could ask to get my discharge changed until my brother told me about it, which is the main reason I did not apply to the NDRB until now.  Thank you for your time and consideration ahead of time.  If more information is required please inform me, and I will provide all documents needed.

Thank you, sincerely

M_ O_ P_ (signed by Applicant)”

Documentation

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

No additional documentations

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP):  920228 – 920810 (DEP)
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920811		Date of Discharge:  961210

Length of Service (years, months, days):

	Active:    04 04 00 (Doesn’t exclude confinement)
	Inactive:  None

Age at Entry:  18			Years Contracted:  2

Education Level:  13+		AFQT:  85

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)		Behavior:  3.80 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM W/BRONZE STAR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

920811:	Commenced active duty for 2 years.

940513:	Applicant was arrested by Mexican authorities at 0030 while attempting to cross the international border into the United States, a vehicle search resulted in 50 packages containing marijuana totaling 117.300 kilograms, (approx. 250 pounds).

940519:	Civil Conviction:  Fifth District Court, Tijuana, Baja, California for violation of possession of marijuana.  
Sentence:  Six years in prison and a fine of $1985.00, 130 days of community service.

951115:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by his arrest in Mexico for smuggling approximately 125 kilos of marijuana.

951117:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960628:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse as evidenced by his arrest in Mexico for smuggling approximately 125 kilos of marijuana, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.  Applicant represented by U. S. Navy JAG.

961017:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  In May 1994, AN O_, (Applicant), a Mexican National, was arrested and later convicted in Tijuana, Mexico for attempting to smuggle approximately 250 pounds of marijuana into the United States.  He is presently in a Mexican prison serving a six year term.  On 31 May 1996, an administrative discharge board convened by Commander, Naval Base San Diego found that AN O_ (Applicant) committed misconduct due to drug abuse and recommended that he be separated from the Navy with an other than honorable discharge.  AN O_ (Applicant) met with the attorney who represented him at the administrative discharge board, and they fully discussed the implications of his requested separation from the Navy while in foreign confinement and prior to his return to the United States.  He desires to be separated from the U.S. Navy with an Other than Honorable discharge.  I strongly concur in this request.

961101:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961210:	DD-214 Applicant discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961210 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 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 violation of Article 112a (drug abuse – possession, trafficking) 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.

There is credible evidence in the record that the Applicant possessed illegal drugs.  The record contained no evidence nor has the applicant provided evidence to substantiate his claims of corruption by the Mexican authorities.  Furthermore, neither the record nor the Applicant presents any evidence to support a claim that the Navy improperly handled his incarceration and legal efforts for release.  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 Board found no indication in the record that the Applicant was inequitably or improperly treated.  The Applicant was properly represented at his administrative board by a detailed military defense counsel, also the U. S. Government provided a civil attorney to represent the Applicant before the Mexican judicial system.  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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 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 documentation for the Board to consider.

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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.