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Docket No. ND05-00855

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

FOR OFFICIAL USE ONLY

 ex-MSSR, USN
Docket No. ND05-00855

Applicant’s Request

The application for discharge review was received on 20050426.  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 20050811.  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:

“I’ve been involved in the community and have had no problems.  I am working at 7-11 for the past year, Also working const. Self employed painter.
I want to get an education & buy a house since I’ve been out of the military.  I think I’ve matured by working and growing up.  I’ve taken responsibility in paying bills and presenting myself in an honest and truethful manner.  I feel that this discharge has held me down, to accomplish goals in my Life to better educate myself and to be able to put my chin up.  I also would like to say on my behalf that all the benifits that I’ve lost, are needed in my future.”

Documentation

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

Applicant’s DD Form 214
Character reference from J_ & S_ W_, Broker/Owners, A_ Realty of Southern Colorado, dated January 19, 2005
Character reference from J_ M. W_, High School English Teacher, undated
Character reference from C_ A. D_, Owner, on-Line Transcription, dated January 12, 2005
Character reference from M_ C. O_, Jury Commissioner/Deputy Court Clerk, Huerfano County, dated January 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941221 - 950906
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950907		Date of Discharge:  990607

Length of Service (years, months, days):

	Active:    03 09 01 (Does not exclude lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT: 35

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:   NDSM, SSDR, AFSM, AFEM

Days of Unauthorized Absence:  28

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:

971206:	Unauthorized absence, 0500

971206:	Surrender from unauthorized absence, 0550

980121:	NJP for violation of UCMJ, Article 86:
Specification:  On or about 0500, 06 December 1997, without authority, absent from unit and remained absent until 06 December 1997, 0550.
Violation of UCMJ, Article 107 (false official statement) (2 Specs):
Specification 1:  Galley heat stress log, was false dry bulb temperatures documented had not actually been taken.
Specification 2:  Galley refrigerator log, was false temperature documented had not actually been taken.
Violation of UCMJ, Article 92 (failure to obey an order):
Failed to take the required Galley temperatures.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 15 days, reduction to E-2.  No indication of appeal.

980121:	Retention Warning:  Advised of deficiency (UCMJ, Article 86, 92, and 107) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981002:	NJP for violation of UCMJ, Article 91 (insubordinate conduct toward a petty officer):  
Award:  Forfeiture of $508.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

981020:	Charged with drinking onboard ship while on restriction.

981030:	Vacated reduction to E-1 suspension of CO’s mast dated 981002.

981030:	NJP for violation of UCMJ, Article 92:  Failure to obey an order.
	Award:  Forfeiture of ½ month’s pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days.

981130:	Applicant was admitted to Level III treatment at the Addictions Rehabilitation Department.

981224:	Completed Level III treatment.

990215:	Report of Apprehension/Custody & Disposition:  Hampton Road Area Shore Patrol.  Norfolk Police officer spotted the subject running down the street bearfoot and talking to himself.

990215:	Applicant submits urine sample following apprehension.

990310:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990225, tested positive for THC.

990419:	Unauthorized absence, 0500.

990420:	Applicant declared a deserter.

990426:	Missed movement of USS SIMPSON (FFG 56).

990517:	Surrendered from unauthorized absence, 1553.

990519:	NJP for violation of UCMJ, Article 112a (wrongfully use of a controlled substance); Article 134 (disorderly which conduct); Article 86 (unauthorized absence), 0500, 19 April 1999 until he surrendered 1553, 17 May 1999, 28 days, 10 hours and 53 minutes; Article 87 (missed ships movement).
	Award:  Forfeiture of ½ pay for one month and restriction for 45 days.
	Vacate previous ½ pay per month from Oct 30, 1998 NJP.

990521:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

990521:	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.

990524:	Commanding Officer, USS SIMPSON (FFG 56), recommended to Commander, Naval Surface Force U. S. Atlantic Fleet, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.  

990601:	Commander, Naval Surface Force, U. S. Atlantic Fleet, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990607:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990607 under other than honorable conditions for misconduct due to drug abuse (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).

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  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.  Certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by four nonjudicial punishment (NJP) proceedings.  His first NJP resulted from his violations of Article 86 (unauthorized absence), Article 107 (false official statement, 2 specifications) and Article 92 (failure to obey regulation).  A second NJP for violation of Article 91 (insubordinate conduct toward a petty officer) was followed shortly by his third NJP resulting from his violation of Article 92 (failure to obey and order).  After apprehension by Norfolk police the fourth and final NJP adjudicated violations of Articles 112a (wrongful use of a controlled substance), Article 134 (disorderly conduct), Article 86 (unauthorized absence) and Article 87 (missing movement).  The record clearly documents the Applicant’s blatant disregard for authority.  The Applicant tested positive on a urinalysis for THC, a violation of Article 112a (wrongful use of a controlled substance) which substantiates the misconduct for which he was separated.  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.   Separation processing is mandatory for sailors who abuse illegal drugs and generally results in a characterization of service of under other than honorable conditions.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, 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.  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 submitted four character reference letters for the board’s consideration.  Based on a lack of sufficient post service factors, 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 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 24, effective 20 May 99 until 26 March 2000, 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 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.