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Docket No. ND06-00004

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

FOR OFFICIAL USE ONLY

 ex-SMSR, USN
Docket No. ND06-00004

Applicant’s Request

The application for discharge review was received on 20050928.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  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.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721.  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 drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I would like to change my Discharge, because I would like to apply at the US Postal Office.  I have already taken the test, but I would like my papers to say Honorable.  It would help to get hired.  I have been working very hard ever since I returned home.  I have gotten married and had a little girl named B_.  I have the life I have always dreamed of.  I just want to be able to have the opportunity to be proud of my Navy Experience and Discharge.  It’s the only thing I am not happy with in my life.  Thank you so much for reviewing my case.”

Applicant’s Remarks:  Taken from the DD Form 293 to the Board.

“I would like to say that I was younger and I really missed my family at the time.  I wanted to do anything to go home.  I got to come home alright.  I didn’t care about the consequences.  Now I have a wonderful family.  All I want to do is get my Discharge changed so I can get this job.  I take full responsibility for my actions.  I don’t want my mistakes from the past to get in my way of any future employment.  I have already taken the Postal exam and scored very high on it.  I would just like to tell them that I got an honorable discharge.  Thank you for taking the time to review my paper work.

Documentation

Only the service record was reviewed.  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:  USNR (DEP)	19990429 – 19990523		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990524		Date of Discharge:  20020208

Length of Service (years, months, days):

	Active:    02  08  15  (Does not include lost time)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  27 days  (Extracted from DD 214)
	Confinement:		  Unknown

Age at Entry:  25

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  36

Highest Rate:  SMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, Navy and Marine Corps Overseas Service Ribbon, Sea Service Deployment Ribbon.

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620

Chronological Listing of Significant Service Events: 

990429:	Applicant briefed on Navy's policy of drug and alcohol abuse.  Enlistment waiver granted.

000316:	NJP for violation of UCMJ, Article 86: Unauthorized Absence
	Award:  Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

001222:	Retention Warning:  Advised of deficiency (missing ship’s movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001222:	NJP for violation of UCMJ, Article 86:  Unauthorized absence
Violation of UCMJ, Article 87: Miss ship’s movement.
	Award:  Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

010928:	Applicant to unauthorized absence at 0700.

011003:	Applicant missed ship’s movement.  [Extracted from Commanding Officer’s letter of 020102.]

011025:	Applicant from unauthorized absence.  [Extracted from DD 214]

011117:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (3 Specs):  Unauthorized absence.
	Charge II: violation of the UCMJ, Article 87:  Missing ship’s movement.
	Sentence: Forfeiture of $347.00 pay per month for 1 month, reduced to E-1.  Confinement for 30 days.
	
011211:	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.

011211:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

011219:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
Award:  Forfeiture of $521.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

020102:	Commanding Officer, USS ESSEX, recommended Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Based on SMSR F_ (Applicant)’s misconduct, he clearly demonstrates no desire to adhere to basic Navy standards.  His misconduct is detrimental to good order and discipline.  I do not believe he has rehabilitative potential or that he will become an asset to the Navy in the future.  In keeping with the Navy’s zero tolerance on illegal drug use, I recommend SMSR F_ (Applicant) immediate separation from the Naval service with an Other Than Honorable (OTH) characterization.”

020108:	COMPHIBGHRU ONE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020208 by reason of misconduct due to drug abuse (A and B) with a service characterization 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).

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 a retention warning and four (4) nonjudicial punishment proceedings for violations of Articles 86, 87 and 112a of the UCMJ.  The Applicant was also convicted at summary court-martial of violations of Articles 86 and 87 of the UCMJ.  Violations of Articles 87 and 112a are considered serious offenses.  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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  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.  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 a 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