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NAVY | DRB | 2000_Navy | ND00-00746
Original file (ND00-00746.rtf) Auto-classification: Denied


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

ex-AEAN, USN
Docket No. ND00-00746

Applicant’s Request
The application for discharge review, received 000525, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Statement of Issues

I would like to submit the following statement on my behalf. I served in the United States Navy from October 6, 1994 to August 20, 1999. I believe my discharge was inequitable because it was based on one isolated incident in 4 years, 8 months and 24 days of service with no other adverse actions.

In October, 1998, AD3 S_ turned me in for use of steroids. My squadron legal officer approached me at work where I was escorted to NCTS. A detective took me into a room and I was interrogated for 45 minutes. NCIS searched my truck, my room and gave me a urinalysis test. I was not charged with any infraction of the law at this time and was told to go back to work. I was put under investigation from October 1998 until the court martial. I feel that the search of my vehicle, and premises was illegal because I was not charged with anything at this time. The results of the urinalysis was never revealed to me at any time - even during the court proceedings. There were two other airmen involved in this incident. I was never afforded an opportunity for a Captain's Mast by my Commander, J_ Z_ or given an opportunity for rehabilitation. Approximately 30 days passed before I was court martialed on 4 Jan 99. 1 was charged with violating Articles 92, 112A & 81 of the UCMJ. Fourteen days after I was court martialed I was sent to the confinement facility for two months. I was sent straight to a special court martial where I was found guilty and received confinement for 2 months, reduction of one pay grade and forfeiture of $750 per month for two months. My attorney, LT E_ R_, JAGC, USNR thought the verdict was unjust and wrote a letter of deficiencies to the Commanding Officer, Naval Air Station, Sigonella on my behalf I have included a copy of this letter for your review. Prior to this incident, I never received any nonjudicial punishment and received good evaluation reports from my commanders. I was a model soldier for 4 years, 8 months and 24 days out of a five-year enlistment.

Upon my return to the squadron, I went back to work. An administrative board was convened on April 14, 1999 to decide if I would be discharged from the Navy. When the board convened, my records were not present so it is hard for me to understand how the board could make a decision based on my past service when they had nothing to refer to. There were three officers that made up the board, they did not know the law - my lawyer was the only one present that had a full understanding of the law. After the admin board, I spoke with one of the officers who told me that if he had known that my separation date was so close, he would have suspended the decision. This would have been evident if my records had been present. I was asked questions like was it my intent to get out of the Navy by doing this; would I ever do it again; did you know it was illegal? My response to all of these questions was no. The board convened for approximately 20 minutes, and then I was given the verdict of other-than-honorable discharge.

I left for Norfolk around June 21 st for separation processing and remained there until July 28, 1999. 1 was sent there without separation authority. Normally, separation processing is supposed to take 10 days - it took I month & 8 days for me to be discharged. Because of the delay, I went to my commanding officer at Norfolk to request that she put me on administrative leave until my discharge could be processed. I also wrote to Alaskan Senator M_ and asked him to inquire about my discharge. I was finally discharged August 20, 1999 - 20 days before my due discharge. My original separation date was approximately November 10, 1999.

I request that my discharge be upgraded to honorable and the narrative reason for separation of misconduct be stricken from my DD214.

2. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, and continue to support the contentions of the FSM in his request for an upgrade from an Under Other Than Honorable ( UOTH ) to Honorable, or an upgrade of his UOTH to a General, and in both issues having the narrative reason for separation of misconduct stricken from his DD 214, and if necessary replaced with convenience of the government.

In the evidentiary record is a statement from Lt. E. R_, JAGC, USNR dated 19 April 1999, counsel for the appellant at the time of discharge. In this statement Lt. R_ referenced Milpersman, Chapter 1910. He notes further that the past decision contained errors and unjust action by the Administrative Board, that were not in keeping with the standards maintained within the referenced regulation.

As we agree with the notations set forth in this memorandum, we refer the board members to it for their review, for the sake of brevity. Additionally, we request clemency be utilized and if the issue as originally addressed by the FSM cannot be favorable resolved we request consideration be given to a change of discharge to that of a General discharge. So that past injustice can be resolved and provide the FSM with the unique opportunity to continue in civilian society unencumbered.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of deficiencies dated April 19, 1999
Copy of charge sheet
Copy of DD Form 214
 Copies of evaluation reports (8)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940826 - 941005  COG

 Period of Service Under Review :
Date of Enlistment: 941006               Date of Discharge: 990820

 Length of Service (years, months, days):

         Active: 04 10 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (11 months extension)

 Education Level: 12                        AFQT: 65

 Highest Rate: AE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (2)    Behavior: 3.90 (2)                OTA: 3.90        4.0 evals
 Performance: 4.00 (5)    Behavior: 2.80 (5)                OTA: 3.29        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with Bronze Star, NUC, SSDR (2), AFSR (2), NATO, GCM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990104:  Special Court Martial
         Charge I: violation of the UCMJ, Article 92:
         Specification: Violation of a lawful general order by wrongfully possessing hypodermic needles for unauthorized absence between April and October 1998.
         Charge II: violation of the UCMJ, Article 112 (4 specifications):
         Specification 1: Wrongful possession of anabolic steroids between the dates of 1 March 1998 and 21 October 1998 at U.S. Naval Air Station Sigonella, Italy.
         Specification 2: Wrongful use of anabolic steroids on diverse occasions between the dates of 1 March 1998 and 21 October 1998 at U.S. Naval Air Station Sigonella, Italy.
         Specification 3: Wrongful introduction of anabolic steroids onto a U.S. Navy aircraft between the dates of 1 March 1998 and 21 October 1998, at Hurghada, Egypt.
         Specification 4: Wrongful introduction of anabolic steroids onto U.S. Naval Air Station Sigonella, Italy, a naval installation between the dates of 1 March 1998 and 21 October 1998.
         Charge II: violation of the UCMJ, Article 81:
         Specification: Conspiracy to distribute steroids on or about April 1998.
         Findings: to Charge I and II and specifications there under, guilty.
         Sentence: CHL for 2 months, forfeiture of $750 per month for 2 months, reduction to AEAN.
         CA 990312: Sentence approved and ordered executed.

990104:  Applicant deferred on 4 January 1999.

990122:  Applicant to confinement.

990224:  Applicant released from confinement.

990315:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
990315:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990414:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed drug abuse and a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990507:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): AEAN (applicant) knew the consequences of using anabolic steroids, a Schedule III controlled substance. He blatantly ignored multiple informational and warning notes in the HC-4 Plan of the Week, disregarded briefings on Navy regulations, and continued usage even after two command members were investigated and charged with possession of anabolic steroids. I concur with the administrative board's findings and recommendation.

990712:  Chief of Naval Personnel forwarded recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs) for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990803:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990806:  CNMPC directed the applicant's discharge 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 990820 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).

 The applicant’s first issue is a statement detailing the circumstances of his case and reasons, why he believes, an upgrade is warranted. The NDRB reviewed the applicant’s entire service record, and although the applicant feels his overall service was honorable, the NDRB found the applicant’s misconduct significant and warranted an other than honorable characterization. The applicant requested the reason- misconduct- be stricken from the DD 214. To change the reason for discharge would be inappropriate. Relief is not warranted.

The applicant’s second issue states: “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, and continue to support the contentions of the FSM in his request for an upgrade from an Under Other Than Honorable ( UOTH ) to Honorable, or an upgrade of his UOTH to a General, and in both issues having the narrative reason for separation of misconduct stricken from his DD 214, and if necessary replaced with convenience of the government.
In the evidentiary record is a statement from Lt. E. R_, JAGC, USNR dated 19 April 1999, counsel for the appellant at the time of discharge. In this statement Lt. R_ referenced Milpersman, Chapter 1910. He notes further that the past decision contained errors and unjust action by the Administrative Board, that were not in keeping with the standards maintained within the referenced regulation.” The NDRB found no impropriety or inequity in the applicant’s discharge. To change the reason for discharge to convenience of the government would be inappropriate. Relief is denied.

 The NDRB is authorized to consider post-service factors in the re characterization of a discharge. The applicant must be aware that 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, may be considered by the NDRB. The applicant provided no post service documentation for the Board’s consideration.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.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:

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


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