Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-00507

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

 ex-SA, USN
Docket No. ND05-00507

Applicant’s Request

The application for discharge review was received on 20050131.  The Applicant requests the characterization of service received at the time of discharge changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050601.  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 DRB,

The following issues are the reasons I believe my discharge should be upgraded to honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply in my case because of the evidence I am submitting. I would like to start with my average conduct and efficiency rating/behavior and proficiency marks were always above standards. I always conducted myself in a professional manner and was looked up to as a leader in my division. I was considered a lead seaman in my division. My supervisors could always rely on me being there to pick up the slack for those who didn’t care and those who didn’t know. I received a Letter of Accommodation from the commanding officer of the USS Duluth LPD-6 for an ammo onload in Seal Beach, CA. I received a letter of recommendation from the commanding officer of the US Duluth LPD-6 on my evaluation report to be promoted to the next pay grade. My records and promotions show that I was a good service member. It wasn’t till the end of my enlistment that I started making poor decisions. Not solely on my personal problems that impaired my ability to serve. I was going through a rough time in my life. My mother was dying from ovarian cancer. I felt like I was being held back from striking into the dental tech rate in which I completed over a year of on the job training and all the books required for the DT rate. It seemed like my division was holding me back from trying to strike out of the Boatswain Mate rate because they didn’t want to lose another lead seaman to another rate. I was one of the few hard working seaman left in the division. Of course, these are all just accusations but that is the way it seemed to me. After awhile I pretty much just gave up and resorted to drinking all the time to take my mind away from everything that was going on in my life. I believe that’s where my youth and immaturity stepped in and didn’t let me see that it was impairing my judgment. I made a huge mistake and now I have to live with the poor decisions I have made. I take full responsibility for all my actions. I am not blaming anybody for the decisions I made. I realize now that I let myself become weak and make poor decisions. I accept that and I am paying for wrongful actions. There is not a day that goes by that I don’t feel ashamed for what I have done to my country, my fellow shipmates, and myself. There is nothing I wouldn’t do to make things right. I let my mother die thinking the navy let me out so I could be with her. I just didn’t want her to be disappointed of her son whom she was so proud of. Now she looks down on me knowing the truth. I can’t even begin to explain how that makes me feel. I am asking for a second chance to make things right for myself I know my country will go on whether I get an upgrade or not as I will to. I would just like to do it with my head held high like I use to.
I would like to add that I now reside in Fraser, Michigan with my lovely wife whom I attend church with every Sunday. She is the most wonderful person in my life. We plan on starting a family together in the near future. I haven’t been able to find a stable job so I do whatever I can to get the bills paid. I am hoping in the future I will be Able to pursue a career in law enforcement.  It has been a life long dream of mine. I plan on going to school for criminal law.  Hopefully sooner than later! I would like to thank the review board for taking the time to review my case.  I hope and pray that I will be given a second chance.  God bless! ”

REMARKS: I am sending more supporting documents I have not received them yet.  I will get them off ASAP.  I would also like my reentry code upgraded so I can finish what I started.  I have never failed at anything and the one that means the most I have failed.  It would mean so much to be able to finish what I started.      

Documentation

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

Letter of Appreciation, CO USS Duluth (LPD-6)
Evaluation Report 99 Sep 13 – 00 Jul 15
Evaluation Report 00 Jul 16 – 01 Jul 15
Navy Service Schools/Military Training Course Information 
Personnel Qualification Standards (PQS) Information 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990611 - 990616	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  990617		Date of Discharge:  020423

Length of Service (years, months, days):

	Active:    02 10 06
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (12 months extension)

Education Level:  10(GED)			AFQT:  50

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)		Behavior:  2.67 (3)		OTA:  2.67

Military Decorations:  None

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

Days of Unauthorized Absence:  7

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:

990611:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver approved.  Applicant briefed on Navy's policy of drug and alcohol abuse.

990617:	Applicant reported for initial tour of active duty.

991008:	Applicant reported aboard USS Duluth (LPD-6).

010301:	NJP for violation of UCMJ, Article 86: unauthorized absence and Article 87: missing movement.  Award:  30 days at correctional custody unit.

020311:	UA from USS DULUTH (LPD-6) San Diego, CA.

020312:	Applicant provides specimen for urinalysis and signs register.
  
020318:	Surrendered from UA.
   
020320:	NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 020314, tested positive for cocaine.

020405:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award:  Forfeiture of $619.00 pa y per month for 2 months, restriction to USS DULUTH (LPD-6) for 45 days, reduction to E-2.  No indication of appeal in the record.

020405:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible under other than honorable conditions by reason of misconduct due to drug abuse.

020405:	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.

020408:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

020412:	COMPHIBGRU THREE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020423:	Separation physical, Applicant admits to cocaine use and refuses treatment.

020423:	DD Form 214: Applicant discharged 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020423 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), 87 (missing movement), and 112a (wrongful use of a controlled substance) of the UCMJ.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  There is credible evidence in the record that the Applicant used illegal drugs and processing for separation is mandatory for all sailors who abuse illegal drugs.  Separation under these conditions generally results in a characterization of service of under other than honorable conditions.   Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his immaturity, youth, over indulgence in alcohol, and personal stress caused by his mother’s illness.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  The record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Also, the applicant states that he was not being allowed to “strike into the dental tech rate”.  The record contains no evidence of any wrongdoing by the Applicant’s chain of command.  To the contrary the Applicant was allowed a year of OJT in the dental field and to complete the academics required to strike for DT.  Even though he enlisted into the “seaman apprenticeship” program for a bonus.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Furthermore, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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.  Credible evidence of a substance free lifestyle, evidence of continuing educational pursuits, employment record, documentation of community service, and certification of non-involvement with civil authorities, are 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 33, effective 16 Jul 2001 until 21 Aug 2002, 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.