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Docket No. ND05-01107

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

FOR OFFICIAL USE ONLY

 ex-BMSN, USN
Docket No. ND05-01107

Applicant’s Request

The application for discharge review was received on 20050624.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20051215.  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 and reason for 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: 

“I contend that I deserve a record review of my entire military career; that based on my exemplary service prior to April 1994 and the extenuating circumstances of my wife’s father having cancer and the need for my wife to be with her dad in Florida to assist in his care and treatment and my inability to assist my family in its’ time of need led to the loss of my self control on 4/16/1994 to which I admitted.  I contend that I had 60 days leave on the books at the time of discharge from the Navy and would have relished an opportunity to clear my record if it had been offered.

I contend that I served the US Navy honorably from October 6, 1981 to September 10, 1985 and from September 11, 1985 to August 21, 1989 and that I would not have jeopardized my good standing with the Navy without just cause.”

I also contend that the punishment given was far too harsh for the infraction when considering the prior good character and willingness to serve.  I am in hopes of obtaining an upgrade of my discharge to allow me to enter reserve status during this time of war with Iraq.  

Documentation

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

Applicant’s DD Form 214 from the period of service under review
Applicant’s DD Form 214 from August 21, 1989
Applicant’s DD Form 214 from September 10, 1985
Enlisted Performance Record
Awards Listing 
Navy Achievement Medal Citation 
Administrative Remarks (Nominated as Petty Officer of the Month for December 1993)
Partial Evaluation, dated November 30, 1993
E-MAIL from Applicant to C_ SM_, dated September 30, 2002 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19810925 – 19811005		COG
	Active:   USN 			19811006 – 19850910		HON
	Active:   USN			19850911 – 19890821		HON

Period of Service Under Review:

Date of Enlistment:  19890822		Date of Discharge:  19940819

Length of Service (years, months, days):

	Active:    04  11  28  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  26

Years Contracted:  6 

Education Level:  11				AFQT:  42

Highest Rate:  BM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.91 (7) 	Behavior:  3.63 (7) 		OTA:  3.94 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Second Good Conduct Award, National Defense Service Medal, Southwest Asia Service Medal with 1 Bronze Star, Sea Service Deployment Ribbons with 3 Bronze Stars, Armed Forces Expeditionary Medal, Navy Achievement Medal with Gold Star.

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: 

890822:	Reenlisted this date for a term of 6 years. 

891030:	DAPA Consultation:  Applicant screened as a result of possible alcohol abuse.  Applicant determined to not be psychologically or physically dependent on alcohol.  Comments:  “Member arrested for DUI in Sept 89.  Member has no ETOH history.  Member refused BAC.  Member states that he only had 3 Rum/Cokes in a 2 hr period.  Member states that 4-5 drinks would have him drunk.  I feel this is a isolated incident.  Member will benefit from NADSAP.  I need a call on dependency.”  Recommendations:  Level I, NADSAP.

900119:	Applicant completed Navy Alcohol and Drug Safety Action Program (NADSAP).

Undated:	Applicant’s unsigned and undated statement to MA2 R_ W. P_, USN, Command Investigator.  

940505:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful order from on or about 930911, to on or about 940404.
Violation of UCMJ, Article 112a: Wrongful use of marijuana on 940316.
	Award:  Forfeiture of $948 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5.  No indication of appeal in the record.

940506:	Drug Dependency Evaluation:  Applicant found not dependent on THC.  

940506:	Applicant notified of intended recommendation for discharge with a under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by the nonjudicial punishment under the UCMJ in your current enlistment.

940506:	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.

940506:	Commanding Officer, USS AMERICA, recommended discharge with a under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.  Commanding Officer’s comments:  “BM1 H_ (Applicant) misconduct warrants separation.  His presence is detrimental to morale and good order and discipline on board America.  He has no potential for further military service.  I strongly recommend BM1 H_ (Applicant) be separated immediately from the naval service under other than honorable conditions by reason of misconduct due to commission of a serious offense.  REQ discharge authorization soonest.”

940516:	BUPERS directed the Applicant's discharge with a under other than honorable conditions by reason of misconduct due to the ucommission of a serious offense.

940815:	BUPERS directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940819:	Applicant indicated that he understood he would be administratively reduced to E-3 upon discharge.

940819:	DD-214:  Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940919 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use and Article 92, failure to obey order or regulation.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

The Applicant contends that his entire period of service, nearly 13 years total, is sufficiently meritorious to warrant an upgrade of his discharge.  The NDRB, under its statutory and regulatory framework, may upgrade a discharge based upon prior service achievements.  A review of the Applicant’s prior service indicates that he completed two periods of active service with a characterization of honorable.  Furthermore, he earned two Navy and Marine Corps Achievement Medals, two Good Conduct Medals, various unit citations and campaign awards, and had above average enlisted performance evaluations during his Naval service.  After a careful review of the Applicant’s prior service, the NDRB unanimously concluded that the Applicant’s record of achievement was insufficient to mitigate his misconduct.  Relief denied.

The Applicant contends his disciplinary problems were the result of stress caused by his father-in-law’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.  It must be noted that many members of the Navy endure hardships similar to those of the Applicant.  It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems.  Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.    Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 92, failure to obey order or regulation, or Article 112a, wrongful use, possession, etc, of controlled substances.

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