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NAVY | DRB | 1999_Navy | ND99-00906
Original file (ND99-00906.rtf) Auto-classification: Denied


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

ex-AA, USNR
Docket No. ND99-00906

Applicant’s Request
The application for discharge review, received 990624, requested that the reason for the discharge be changed to "Release from active duty". The applicant requested a documentary record discharge review. The applicant listed the AMVETS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The Board noted a number of mistakes made in issuing the applicant’s DD-214 and are noted below. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

The NDRB did note a number of administrative errors on the original DD Form 214. Block 24. Character of Service should read: “GENERAL (UNDER HONORABLE CONDITIONS)” vice “HONORABLE”, Block 25, Separation Authority should read: “NAVMILPERSMAN Article 1910-146” vice “MILPERSMAN 3620260”, and Block 12c, Net Active Service This Period, should read “ 02 11 13” vice “03 08 10”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Narrative Reason for Separation "Misconduct" Change to "Release from Active Duty" (eligibility for Educational Benefits)

Separation Code, and Re-entry Code, Change for the purpose of enlistment into active duty.

 THANK YOU FOR THE OPPORTUNITY TO REQUEST A REVIEW OF DISCHARGE. CHARACTER OF DISCHARGE TS HONORABLE, HOWEVER THE REASON FOR SEPARATION (MISCONDUCT SEPARATION CODE GKK) AND (REENTRY CODE RE-4), THIS DISALLOWS ME TO RE-ENTER ACTIVE RESERVES OR GUARD UNIT. PLEASE GRANT ME THE CHANCE OF A LIFE TIME ADVENTURE, TO BE ABLE TO RE-ENLIST INTO ACTIVE DUTY, RESERVE OR GUARD UNIT. I STILL HAVE HOPES AND ASPIRATIONS OF MAKING THE MILITARY A CAREER. SINCE DISCHARGE FROM THE MILITARY I HAVE COME TO REALIZE THAT I REGRET THAT A GRAVE MISTAKE WAS MADE. I TAKE FULL RESPONSIBILITY FOR MY ACTIONS. THE TIME SPENT IN THE NAVY, WAS FULFILLING, AND REWARDING. I WAS VERY PROUD TO BE PART OF THE NAVY. EVALUATIONS REPORTS WERE OUTSTANDING THROUGHOUT MY MILITARY SERVICE. I WAS VERY PASSIONATE ABOUT MY WORK, WITH ENTHUSIAM, EVERYDAY WAS CHALLENGING, AND MEMORABLE. I CANNOT THANK THE NAVY ENOUGH FOR GIVING ME THE OPPORTUNITY OF A LIFE TIME, TO SERVE MY COUNTRY. AS A YOUNG MAN, THE NAVY 'PUT THEIR FAITH AND INVESTED MUCH TIME AND MONEY INTO A CAREER. I AM SORRY TO HAVE DISAPPOINTED THE NAVY, THEY PUT THEIR TRUST IN ME. AT THIS TIME I AM PURSUING MY EDUCATION, AND MV GOAL IS TO GET A DEGREE IN AERONAUTICAL SCIENCE. I AM ENROLLED IN GROUND SCHOOL TO GET A PRIVATE PILOTS LICENSE. WHEN A LICENSE IS ISSUED, MY INTENTIONS ARE TO PURSUE AN AVIATION CAREER, GO BEYOND THAT AND FLY MULTIPLE ENGINES, OR JET ENGINES, THEN FLY FOR A COMMERCIAL AIRLINE. I HAVE COMPLETED TWO OF ACTIVE DUTY SERVICE AND WITHIN ONE YEAR OF SEPARATION FROM THE NAVY, AND I ENTER A RESERVE OR GUARD UNIT, UNDER AN OBLIGATION TO SERVE AT LEAST FOUR YEARS, THEN I WILL BE ABLE TO CONTINUE, MY EDUCATION. PLEASE ALLOW ME TO HAVE THAT OPPORTUNITY SINCE SEPARATION, I HAVE BEEN EMPLOYED AS A SECURITY GUARD AT THE ALBUQUERQUE INTERNATIONAL AIRPORT CHECKPOINT AND PREBOARD. CURRENTLY I AM EMPLOYED AT SANDIA CASINO, AS A SECURITY GUARD, I GO TO SCHOOL DAILY (NIGHT SCHOOL), AT EMBRY RIDDLE AERONAUTICAL UNIVERSITY AT KIRKLAND AFB, ALBUQUERQUE, NM. I AM A GOOD CITIZEN, AND A VERY DEVOTED FAMILY AND CHURCH MAN. I HAVE BEEN CLEAN. I AM HIGHLY MOTIVATED TO PURSUE MY CAREER, HOWEVER I NEED YOUR PARDON. WITH YOUR PARDON YOU WILL MAKE A DIFFERENCE IN MY LIFE, WITH A POSITIVE IMPACT. PLEASE CHANGE NARRATIVE REASON FOR SEPARATION (MISCONDUCT) TO (RELEASE FROM ACTIVE DUTY), CHANGE SEPARATION CODE, AND RE-ENTRY CODE, CHANGE FOR THE PURPOSE OF ENLISTMENT INTO ACTIVE DUTY.
THANK YOU VERY MUCH FOR YOUR TIME AND COOPERATION.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated August 26, 1998
Copy of Federal Drug Testing Custody and Control Form
Copy of Substance Abuse Forensic Evaluation dated September 18, 1998
Copy of Drug Test Results dated July 6, 1998
Copy of DD Form 214
Certificate of Completion dated December 22, 1995
Copy of Central Texas College grade report dated June 28, 1997 (2 copies)
Certificate of Completion February 5, 1996 (2 copies)
Certificate of Completion dated January 12, 1996
Certificate of Recognition dated October 22, 1995
Character information sheet dated March 13, 1998
Copy of Admin screening form dated February 6, 1998
Copy of front pages of Evaluation Report Counseling Record dated 95Nov20 to 96Jan15, 96Jan16 to 96Jul15, 96Jul16 to 97Jan15, 97Jan16 to 97Jul15, and 97Jul16 to 98Jan15
Job/character reference dated August 24, 1998
Registration and Records from Embry-Riddle Aeronautical University

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940929 - 950625  COG

 Period of Service Under Review :
Date of Enlistment: 950626               Date of Discharge: 980608

 Length of Service (years, months, days):

         Active: 02 11 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 44

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (4)    Behavior: 3.00 (4)                OTA: NMF

 Military Decorations: None

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

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

950628:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., possession of marijuana, 6/93. Paid $61.

980212:  NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 980205, tested positive for THC.

980218:  Drug and Alcohol Abuse Report: Marijuana abuse, probable cause urinalysis February 1, 1998, one to three times per month, ashore off duty. CAAC recommended Level III treatment. Physician found applicant not dependent and recommended Level III treatment. Commanding officer recommended Level III treatment.
980219:  NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongfully use some amount of marijuana on 1Feb98, (2) Wrongfully introduce some amount of marijuana onto an installation used by the armed forces.
         Award: Forfeiture of $539.15 per month for 2 months, restriction and extra duty for 45 days, reduction to AA. No indication of appeal in the record.
980304:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urinalysis on 12 February 1998.
980304:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
980327:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

980416:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): I strongly disagree with the administrative board's recommendation for characterization of service as General. AA (applicant) should be separated from Naval service with an Other than Honorable discharge. He knew the Navy's zero tolerance drug policy, having previously admitted to pre-service use, yet he chose to ignore the policy. Additionally, AA (applicant) harbored several items of drug paraphernalia in his room and was the catalyst who led to the discovery of eight other drug abusers in the command. His actions have created an administrative burden for the command and are far below the high standards to which we hold ourselves as professional Sailors. As a squadron Commanding Officer, I cannot afford to have any member of my command using drugs, let alone someone who directly supports aircraft maintenance. To do so would risk the lives of my aviators and other personnel. I am also concerned about the message we would send if he is separated with a General discharge. If a Sailor can use drugs and get a General discharge, then we cheapen the incentives to refrain. I no longer trust AA (applicant). He is a danger to himself and his co-workers. I most strongly recommended he be discharged from Naval service with an Other than Honorable discharge.

980428:  Commander, Cruiser-Destroyer Group ONE directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980608 general (under honorable conditions)for misconduct due to drug abuse (use) (A). The Board presumed regularity in the conduct of governmental affairs (B). 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).

The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Relief is therefore denied.

Responding to the applicant’s request for a reason change, the applicant’s misconduct is clearly documented in the service record. The separation authority determined that misconduct due to drug abuse most clearly described the reason for discharge. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE5, Washington, DC 20380-3001. 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. Relief, is therefore, denied.

The applicant submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided documentation of his post-service. However, it is the Board’s opinion that his post-service is not of such quality to counter the seriousness of the applicant’s misconduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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