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Docket No. ND05-00707

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

ex-AMHAA, USN
Docket No. ND05-00707

Applicant’s Request

The application for discharge review was received on 20050308.  The Applicant requests the characterization of his service, received at the time of discharge changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and encouraged to attend a personal hearing in the Washington, DC area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713.  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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern:

This is a letter of intent to upgrade my Other Than Honorable discharge.  My only documents will be a written statement with 15yrs of reflection.

At seventeen years of age, a nine year immigrant from Haiti, I had two options before me after High school.  I had to go to college, or the military.  I had good grades and been taking flying lessons at August martin H.S., so I decided to become a pilot.  I decided the Air Force was the way to go, so there I set off to the Air Force recruiters, but without me being naturalized, they told me it was best if I went with the Navy.

Here I am in the Navy, at the R.T.C. having no idea what I had in store for me.  All is going well and by the time I finished NATTC, I had realized that I had to have further my education and be a citizen to become the pilot that I wanted to be, so I settled for the next best thing, an AMH.  All is still well and was flown to the USS Kitty Hawk, What an eye opener when that arresting hook caught that wire.

My problem with the navy started when I returned to shore at NAS Miramar, SD with VF-24.  From the moment we arrived at the barracks it was Party, Party, Party.  This was the first time I was introduced to alcohol and later amphetamines.  From that day on it was going to work and partying afterwards.  My eyes had never been so opened to such a lifestyle and I thought at the time that it was the normal way to do things.

Let me take the time to add that by no way am I putting the blame for my actions on the Navy.  The Navy presented me with a great deal of opportunities and I failed to take advantage of every single one of them, but I must also point out that there were a lot of bad elements that was in the barracks that should not have been there.  The only times in my life that I had used amphetamines was in the navy and that was because it was available to me by the other sailors that was using inside the barracks.

After the Navy, the environments that had influence me so negatively was removed and the partying stopped.  Today I’ve been blessed to be a husband to my beautiful wife Donna, proud father of three lovely children, Christian who is 11, Daniel who is l0 and another one on the way any day now.  I walk with my head up high knowing that was three and a half years of my thirty seven years of living and like everyone that walks this planet earth, mistakes were made.  I am now a professional over the road tractor trailer driver of seven years who knows the importance of life and regardless of the outcome of my request, I am an Honorable Man.

Thank you for taking time out to read my request, I just felt after fifteen years, this man had to speak out for that kid who stepped into a world that he was not prepared for.  Once again, thank you and God bless

Sincerely,

Y_ M.  C_ (Applicant)
February 25, 2005”

Documentation

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

None were submitted.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860214 - 860825	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  860826		Date of Discharge:  900228

Length of Service (years, months, days):

	Active:    03 06 03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  44

Highest Rate:  AMHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.52 (5)		Behavior:  2.32 (5)		OTA:  3.24

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), MUC, NEM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880418:	NJP for violation of UCMJ, Article 112A: Wrongful use of amphetamines/methamphetamine.
	Award: Forfeiture of $369 per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

880420:	Retention Warning, Fighter Squadron Twenty Four, San Francisco, CA:  Advised of deficiency, Article 112A: Wrongful use of amphetamine/methamphetamines, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890921:	Command directed, fitness for duty urinalysis.

890926:	NJP for violation of UCMJ, Article 86 (2 specs): Failure to go to appointed place of duty, to wit: Duty section muster on 0800, 890812, (2) Fail to go at the time prescribed to appointed place of duty, to wit: Executive Officer’s office on 890915, violation of UCMJ, Article 92: Failure to obey a lawful order issued by Lt R_ to report to the Executive Officer’s office at 0800, 890915.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

891003:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890922, tested positive for amphetamine/methamphetamine.

891030:	NJP for violation of UCMJ, Article 134: Dishonorably failing to maintain sufficient funds for payments of checks.
	Award: Restriction for 30 days, reduction to E-2.  No indication of appeal in the record.

891107:	Medical evaluation for alcohol/drug dependence.  Applicant found to be alcohol dependent – in partial remission and not drug dependent

891116:	Drug and Alcohol Abuse Report: Amphetamines abuse, ashore off duty.  Service directed urinalysis 890921.  Physician found the Applicant not dependent and recommended separation.  Commanding Officer recommended separation.

891214:	Fighter Squadron 24, San Francisco, CA, notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct as evidenced by Commanding Officer’s NJP of 880418 for violation of the UCMJ Article 112(a); Commanding Officer’s NJP of 890926 for violation of the UCMJ Article 86 (2 specs); Commanding Officer’s NJP of 891030 for violation of the UCMJ Article 134; and misconduct due to drug abuse as evidenced by command directed urinalysis of 891003 which tested positive for amphetamines/ methamphetamine.  The characterization of your service may be under Other Than Honorable conditions.

891214:	Applicant advised of rights and having elected 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 and to submit a statement.

891221:	Applicant was given seven working days to submit statement and has not done so.

900110:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

900131:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900228:	Discharged

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900228 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  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 (B and C).

Issue 1:  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After reviewing the Applicant’s case, the Board discovered no impropriety or inequity.  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 three nonjudicial punishment proceedings for violations of UCMJ Article’s 112a (wrongful use of amphetamines/methamphetamine), 86 (unauthorized absence), 92 (failure to obey lawful order), and 134 (failure to maintain sufficient funds for payment of checks) thus substantiating the misconduct for which he was separated.  Separation under these conditions generally results in characterization of service of under other than honorable conditions.  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 short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his youth and being introduced to drugs by shipmates.  While he may feel that these issues were the underlying cause of his misconduct, 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.  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 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 credible evidence of a substance free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant stated that he is not using illegal drugs, is employed, and is happily married with children, however he has provided no documentation.  Based on insufficient evidence and lack of sufficient post service factors relief denied.  

The following if provided for the edification of the Applicant.  The NDRB has no authority to provide a personal appearance hearing since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  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.