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NAVY | DRB | 1999_Navy | ND99-01165
Original file (ND99-01165.rtf) Auto-classification: Denied


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

ex-AA, USNR
Docket No. ND99-01165

Applicant’s Request
The application for discharge review, received 990831, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000522. 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 discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

The NDRB did note an administrative error on the original DD Form 214. Block 24, Character of Service should read: “Under Other Than Honorable Conditions” vice “Other Than Honorable”. The original DD Form 214 should be corrected or reissued as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. There was not enough evidence, based on facts to warrant my less than honorable discharge, and so warrants an upgrade to honorable.' My positive drug screening was a one time event. This event occurred when I was out of uniform and off duty. I have not used alcohol or drugs since that time, nor do I intend to do so in the future.

2. I was in the process of being given an administrative separation by reason of convenience of the government on the basis of parenthood, before I was convicted of the civilian offense. This would have been an honorable discharge, and therefore warrant an honorable discharge. Based on the fact that the paperwork had been submitted and approved for my separation due to parenthood, I not feel that it was justice to change the paperwork.

3. My civilian conviction carried civilian penalties which I have complied with, and so warrants a upgrade to honorable discharge. I was penalized by the civilian justice system, and I was off duty when the civilian offense occurred. I don't think that I should have been penalized twice, once by the civilian system and then by the military system for the same offenses, and so warrants an upgrade to honorable.

4. My military records showed no serious military violations during my term of service before the civilian conviction, and so warrants an upgrade to honorable.

5. I am now a married man with three children. I am currently employed, however an upgrade to honorable would allow me to apply for better positions within the workforce. I have been terminated, or not given certain positions because of my military discharge, I am a responsible family man, trying to be a positive role model for my wife and children, as well as provide them with the necessities of a stable family life. Due to me being the maintainer and provider of my family, being a role model for them so warrants an upgrade to honorable in order to allow me to qualify for better paying positions with state and federal agencies, and in order to obtain positions that will allow benefits for my family.

6. I have applied for and been readmitted to college. Being able to qualify for the GI bill would allow me to further continue my education, in order to provide a better life for my family, and so warrants and upgrade to honorable
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of marriage certificate
Letter from Alabama State University for approval of 1999 fall semester.
Copy of DD Form 214 (Member 4 and 1)
Eight pages from applicant's service record
Copy of Evaluation for 97Jan16 to (blank) signed 5 March 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 950817               Date of Discharge: 970404

 Length of Service (years, months, days):

         Active: 01 07 19
         Inactive: None

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 44

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)*   Behavior: 2.00 (1)*               OTA: 2.00*

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal

Days of Unauthorized Absence: None

*Extracted from supporting documents.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

970103:  Applicant statement requesting a humanitarian discharge.
         Description of Hardship: Not able to provide a guardian for daughter.
        
970103:  Retention Warning: Advised of deficiency (Failing to properly ensure the care of your child while being in an active duty status, being unable for world wide assignment or deployment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970211:  Civil Conviction: San Diego Municipal Court for violation of California Penal Code 273.5(A) infliction of corporal injury on spouse or cohabitant, and violation of California Penal Code 245(A)(1) assault with deadly weapon or instrument (non-firearm).
 Sentence: Fined $200.00, county jail for 3 days, complete 200 hours of EMI, public service for 25 days, enroll in domestic violence recovery program.
970217:  Dependent child care certificate: Applicant not able to be worldwide available during duty hours, exercises, unaccompanied tours, TAD, extended duty hours, PCS and similar military obligations.

970307:  NAVDRUGLAB San Diego, reported applicant’s urine sample, received 970227, tested positive for THC.

970318:  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, misconduct due to the Commission of a serious offense as evidenced by Civilian conviction of 11 February 1997, misconduct due to Civilian conviction as evidenced by your civilian conviction of 11 February 1997, and Convenience of the government due to parenthood.
970318:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.
970320:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse, misconduct due to Civil conviction, misconduct due to the Commission of a serious offense, and Convenience of the government due to parenthood.

970328:  Commander, Cruiser-Destroyer Group ONE approved the applicant's discharge under Other Than Honorable conditions by reason of misconduct due Drug abuse, misconduct due to Civilian conviction, misconduct due to Commission of a serious offense and Convenience of the government due to parenthood. DD Form 214 reflects Commission of a serious offense.

970515:  Drug and Alcohol Abuse Report: Marijuana abuse, 970202, ashore off duty, random urinalysis. CAAC recommended separate not via VA hospital. Physician found applicant not dependent and recommended separation not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: SNM was awarded 45 days restriction and extra duty plus forfeiture of one half months pay times two. Member was reduced in rank to next inferior paygrade for referring incident.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970404 under Other Than Honorable conditions for misconduct due to Commission of a serious offense (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).

In the applicant’s issue 1, the Board determined this issue is without merit. The applicant claims, there was not enough evidence to warrant his less than honorable discharge and his positive drug screening was a one-time event, that occurred when he was out of uniform and off duty. The applicant’s urine sample tested positive for THC. That is sufficient evidence to convict a military member for drug abuse. The applicant admits to using drugs and states, “it was a one time event.” Drug abuse (use) requires mandatory processing for separation. There is no precedence or regulation governing forgiveness of a first time drug offender. It is irrelevant whether the applicant was in or out of uniform, on or off duty, with respect to abiding by the UCMJ. While on active duty, he was a member of the armed forces 24 hours a day 7 days a week and is obligated to follow accountable to the rules and regulations that govern the behavior of military members. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant states he was in the process of receiving an administrative separation by reason of convenience of the government, on the basis of parenthood, before he was convicted of the civilian offense. This discharge would have been Honorable. The applicant should not have committed the civilian offense he was found guilty of and he would have received an honorable discharge. Unfortunately, he did commit the offense. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant states his civilian conviction carried penalties, which he complied with and so he warrants an upgrade of his discharge to honorable. Unfortunately for the applicant, the UCMJ explicitly covers this very type incident. He was properly discharged for commission of a serious offense based on his civilian conviction. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 4, the Board determined this issue is without merit. The applicant claims his military record shows no serious military violations during his term of service before the civilian conviction. The Board does not understand the relevance of this issue. The characterization of the applicant’s discharge was based on his entire enlistment period and not just the good part. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 5, the Board determined this issue is without merit. The applicant states an upgrade to his discharge would allow him the opportunity to apply for better job positions. The Board is under no obligation to upgrade an individual’s discharge for the purpose of obtaining better employment opportunities. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 6, the Board determined this issue is without merit. The applicant states obtaining GI bill benefits would allow him to further his education and provide a better life for his family. Unfortunately, the applicant was not in the military long enough to qualify for the GI bill, even if he did receive an Honorable discharge. The minimum length of service requirement to receive GI bill benefits is 36 months (3 years). The applicant was in the military for 1 year and 7 months. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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