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Docket No. ND06-00645

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

FOR OFFICIAL USE ONLY

ex-OSSN, USN
Docket No. ND06-00645

Applicant’s Request

The application for discharge review was received on 20060412.  The Applicant requests that the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070201.  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 by reason of misconduct due to commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Quality of service

Propriety- Denied due process

Equity – Post service

Documentation

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

Applicant’s DD Form 214 (Service 2) (2 copies)
DD Form 149, dtd December 28, 2005
Letter from BCNR to Applicant, dtd February 27, 2006
Certificate of Honorable Discharge, dtd November 9, 1990
Certificate of Military Service, National Archives Form 13038, dtd July 15, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR	19870519 - 19871111	*
	Active:    USNR	19871112 – 19901109	HON

	* Active Mariner (AR) Program, period prior to Active Duty

Period of Service Under Review:

Date of Enlistment:  19901110		Date of Discharge:  19930106

Length of Service (years, months, days):

	Active:    02  01  26  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  6

Education Level:  13				AFQT:  80

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (4) 	Behavior:  3.6 (4)		OTA:  3.70 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Battle “E” Award, Good Conduct Award, National Defense Service Medal, Southwest Asia Service Medal w/Bronze Star, Sea Service Deployment Ribbon (Third Award)

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

901110:	Reenlisted this date for a term of 6 years. 

921031:	NJP for violation of UCMJ, Article 86 (3 specs):  Absent from unit.
	Violation of UCMJ, Article 92:  Failure to obey lawful order.
Violation of UCMJ, Article 112a (2 specs):  Wrongful use of a controlled substance to wit:  Amphetamines/Methamphetamines and marijuana.
	Award:  Forfeiture of $500.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-5.  No indication of appeal in the record.

921123:	Preliminary CAAC Screening Evaluation.  Applicant appears to be dependent on drugs and alcohol.  
	Recommended:  Applicant should be administratively discharged via a Veterans Administration (VA) Medical Center for 30 days inpatient treatment.  Applicant should attend 3 weekly meetings of NA and 2 weekly meetings of AA, until separation.  Applicant referred to Family Service Center and Fleet Mental Health for evaluation.  Applicant’s potential for future productive military service is considered poor.

921124:	Applicant notified of intended recommendation for discharge with the characterization of service may be under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a drug abuse.

921124:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.  Applicant did not object to separation.

921203:	NAS Miramar Branch Medical Clinic: Drug and Alcohol Abuse Report:  Male referred for dependency evaluation from command DAPA/CAAC.  Member was interviewed this date and CAAC evaluation.  Medical record, DAPA file and service record reviewed.  Addiction to Crystal Meth - (+) UA.  
	Assess: Member is diagnosed as dependent.  Member is amenable to counseling/treatment.
	Recommendations:  Be administratively separated by the command via the VA for dependency treatment.

921203:	NJP for violation of UCMJ, Article 92:  Failure to obey other lawful order.
Violation of UCMJ, Article 112a:  Wrongful use of a controlled substance, to wit:  methamphetamines.
Violation of UCMJ, Article 134:  Breaking restriction.
	Award:  Forfeiture of $500.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

921203:	Forfeiture of pay awarded at NJP on 921031 vacated due to continued misconduct.

921207:	Commanding Officer, Fighter Squadron 24, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “Seaman M_ (Applicant) is recommended for discharge with a characterization of Other than Honorable due to his positive urinalysis and admitted drug addition.  OSN M_ does not warrant any further consideration for retention in the naval service.  Subject member has been medically evaluated as being dependent on drugs and is recommended for VA treatment for drug abuse after separation from the military service.  He is not recommended for retention.”

921229:	BUPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930106 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).  

Equity – Quality of service:  The Applicant states that he was a 4.0 Sailor.  

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 2 nonjudicial punishment proceedings for violations of Articles 86 (3 specs of unauthorized absence), 92 (2 specs of failure to obey lawful order), 112a (2 specs of 3 specs of wrongful use of a controlled substance), and 134 (breaking restriction) the UCMJ.  Violations of UCMJ Articles 92 and 112a are considered serious offenses, for which a punitive discharge is authorized if adjudged by a special or general court martial.  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.

Propriety- Denied due process:  The Applicant states that he was not given due process or representation.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  On 19921124 the Applicant was notified of his Commanding Officer’s intended recommendation for the Applicant’s administrative discharge.  On that same day, the Applicant waived his right to consult with counsel and stated that he did not object to separation.  The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone involved in the discharge process.  Relief denied.  

Equity – Post service: The Applicant states that he has been an outstanding citizen since he was discharged.

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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided any documentation for the Board to consider an upgrade. 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 additional evidence related to this 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), effective 15 Aug 91 until 
04 Mar 93, 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, regulation) and 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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