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Docket No. ND05-01055

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

FOR OFFICIAL USE ONLY

 ex-SR, USNR
Docket No. ND05-01055

Applicant’s Request

The application for discharge review was received on 20050606.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  After a thorough review of the available 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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached letter: 

“I need an upgrade for an investigation for an terminal illness I believe I received in the Navy.  I also hope to get future benefits.”

“To whom it may concern the information I am providing is info that might help my claim.  I believe that I contracted HIV while I was in the Navy.  The reason that I say this is because when I got out on June 4 1996 I’m not sure but about 6 months later Beyer (Bayer) Plasma Center told me that I couldn’t donate Plasma because their were HIV antibodies in my Plasma if I had them then I must of had it when I was in the Navy So I would like for the Navy to do what ever possible to find out if this is true.  The Plasma Center was located in San Diego, Ca.  But now it is closed.  I’m having trouble finding their records because I don’t know where they would be so may the Navy could investigate to get more concrete information.

Thank you, 

[signed] C_ M_ (Applicant)
June 29-05
[address deleted]”

Documentation

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

The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940416		Date of Discharge:  19960604

Length of Service (years, months, days):

	Active:    01  08  12  (excludes lost time)
	Inactive:  00  04  23

Time Lost During This Period (days):  

	Unauthorized absence:  15 days
	Confinement:		  None

Age at Entry:  25

Years Contracted:  8

Education Level:  13	½ 			AFQT:  52

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (1) 			Behavior:  3.4 (1)		OTA:  3.4

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Service Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

940416:	Enlistment waiver granted for one non-minor misdemeanor for driving under the influence.

940908:	Commenced active duty for a period of 36 months.

960401:	Applicant to unauthorized absence at 1430 on 960401.  Intentions unknown.

960402:	Missed ship’s movement from Norfolk, VA this date.

960416:	Applicant from unauthorized absence at 2310 on 960416.

960426:	NJP for violation of UCMJ, Article 86:  Unauthorized absence for 15 days.
	Violation of UCMJ, Article 87: Missing movement.
	Award:  Forfeiture of $490.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

960509:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana and cocaine.
	Award:  Forfeiture of $437.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

960509:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.  [Extracted from CO’s message of 960510.]

960509:	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 and the right to submit a statement.  [Extracted from CO’s message of 960510, which lists the date of this event as 960409.  The date discrepancy is presumed to be a typographical error.]

960510:	Commanding Officer, USS WASP, recommended Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment May 9, 1996 and misconduct due to commission of a serious offense as evidence by nonjudicial punishment awarded on April 26, 1996.  Commanding Officer’s comments:  “SR M_ (Applicant) waived his personnel appearance before me at CO’s mast on his accused notification and election of rights form.  Accordingly, SR M_ (Applicant) was found guilty for wrongful use of marijuana and cocaine, both schedule I controlled substances.  He admitted to the use of marijuana in a sworn statement to my Master-At-Arms office but denies the use of cocaine, for which he tested positive.  Although his marijuana and cocaine use did not occur on board, such conduct cannot and will not be tolerated at this command.  His mast held on 26 April 96 for VUCMJ Article 87 (missing movement), constitutes commission of a serious offense.  Present guidelines state we must process for everything in the members service record.  The main reason for processing in this case is his use of marijuana and cocaine.  SR M_ (Applicant) is well aware of the Navy’s policy regarding the use/abuse of drugs.  I have reviewed his record and based upon the nature of his offenses and my support of the Navy’s “Zero Tolerance Policy”, I believe that he has absolutely no potential for continued successful service in the Navy.  Therefore, I strongly recommend that SR M_ (Applicant) be separated from the United States Navy, by reason of misconduct due commission of a serious offense and misconduct do to drug abuse, with an other than honorable discharge.”

960521:	BUPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

960604:	Applicant discharged.

960619:	Drug and Alcohol Abuse Report:  During a unit sweep, the Applicant tested positive for abuse of marijuana on or about May 21, 1996 ashore-off duty.  Physician found Applicant not dependent and recommended separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960604 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

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 two nonjudicial punishment proceedings for violations of Articles 86, 87 and 112a of the UCMJ.  The record also shows the Applicant tested positive for marijuana use on 19960521, subsequent to his nonjudicial punishment for violating Article 112a on 19960509.  The Applicant’s second positive urinalysis did not result in adjudication at NJP or court-martial.  The Applicant’s violations of Articles 87 and 112a are serious offenses.  It is instructive to point out that the Applicant was granted a waiver for driving under the influence to enter service.  The Applicant’s misconduct while in service is considered a violation of the special consideration given the Applicant upon enlistment.  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 states he hopes to have his discharge upgraded in order to obtain benefits.  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.  Relief on this basis would be inappropriate.

The Applicant states he needs “an upgrade for an investigation” into a terminal illness he believes he received in the Navy.  The Applicant also states, “the Navy could investigate” the plasma center where the Applicant was denied the ability to donate plasma.  The NDRB does not have the authority to conduct an investigation into the genesis of the Applicant’s condition.  Regulations limit the Board’s review to a determination on 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.  Additionally, for the Applicant’s edification, SECNAVINST 1850.4C stipulates that separations for misconduct take precedence over potential separations for other reasons.   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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 87, missing movement or Article 112a, wrongful use of controlled substance.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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