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NAVY | DRB | 2001_Navy | ND01-00343
Original file (ND01-00343.rtf) Auto-classification: Denied


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

ex-ADAR, USN
Docket No. ND01-00343

Applicant’s Request
The application for discharge review, received 010126, requested that the characterization of service on the discharge be changed to Entry level separation or Uncharacterized and the reason for the discharge be changed to RE-1-3. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtain representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010710. 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I would like my letter addressed and all issues contained there in I would like addressed the issue of my recruiter falsifing information. My recruiter paying for me to get my diploma. What would I have to do to upgrade my discharge?

2. I Joined the military at the age of 17 on april 1 2 1999, 1 graduated boot camp without interruption on June26, 1999 from their I went to Pensacola fl. Where I would serve until September 16, 1999 when I graduated A school with a 3.4 gpa and without so much as an incident upon graduation I went to San Diego where I served until November 05 while attending C school. On November 05,1999 1 was transferred to my first command the USS Carl Vinson I was excited and quickly got in the routine of being a sailor. At that time the ship was in dry dock and I was put in the barracks with two other sailors, as I would soon come to find out the USS Carl Vinson was having major drug problems their was a ring of young enlisted sailors that were going to raves as their cominly refered to (underground drug parties) and my room mates were very big into this scene almost as soon as I arrived I felt aliented from my room mates they had been at the command a lot longer than I had and they were very anti-navy. They were messy and inconciderate and after less than a week their I made it known that I wanted to switch rooms I went thru the proper channels to get a room change ran a request chit, which was denied, and asked my warrant officer to please switch me. He said that they didn't have the rooms to go around a switch every person that didn't get along with their roommates. So I continued to stay in the room and things continued to deteroraite to add to the problems my division did room inspection every Monday the first week my room failed due to me leaving my lock unlocked. The next week it failed because my roommates left their side of room in a mess. They were infuriated about this, because one more room failure and we would have to move back on the ship and to some that was worse than anything else imagainable.
I have been a member of the same church my intire life and that church has a locality in every major city and they happened to have one in Seattle so I began to go down their on the weekends and spend it down their with the other saints in my congregation. Well it just so came to happen on my third week and under the command of the USS Carl Vinson that I would come to see just what type of drug problem they indeed had. Upon returning to my room Sunday December 6,1999 I sat down on my bed made a glass of water and put about 5-6 cubes of ice in it I sat down and watched a movie at the end of this movie I went to bed their was nodody else in my room the next morning I awoke prior to my alarin going off and so started the worst day of my life. To make a long story short I made my way to the ship and then to medical I was still unsure of what was going on,by this time though the drugs were at their peek effect and I was incoherent and hulucinating and was put in the hospital over night. When I came back to my senses I was informed that an investigation was being launched and a few hours after that I was informed that I under military custody and would remain so until my blood test returned about a month and a half later they returned and tested positive for L.S.D. I was then charged with drug abuse and was given a summary court marcial.

While I was awaiting court marcial I was held on the ship with the restricted sailors and continued to go to work and perform my duties. As I previously mentioned the Carl Vinson was having major drug problems and lot sailors were being busted for drugs it was during this time that several of my roommates close friends were busted for drug abuse and put on restriction. One day shortly after my test results had returned we were at lunch and I heard a lot of laughter and commotion and after lunch a sailor approached me from my division. It was a well-known fact that I claimed I was innocent and I still did not know what had happened. I mean can you imagine what I was going threw my first ship I'd been their less than a month and I had flipped out one day and I knew I hadn't done any drugs I didn't go anywhere and I wasn't around anybody, but needless to say that everyone believed I was just another druggy. Well my questions would soon be answered as on this day the ADAN M_ approached me and asked me if I had heard what was being said at lunch and I said that I hadn't heard anything and he began to tell me what a sailor nicknamed chewy (a good friend of my roommates) had been saying said that my roommates had grown tired of me and put liquid acid in the ice cube trey and left it their for me to eat. After hearing this I was shocked everything made sense now everything I was unsure of was now clear I was in a way relieved to finally know what had actually happened. I instantly begin my own little investigation I began asking people specifics and came to find out that nearly everyone on restriction had known what happened except me. The net day I went to see a jag officer for advise. He said that since I was going to a summary court marcail that I couldn't have a lawyer but that I could refuse a summary court martial and go to a special court martial we discussed that and decided to go to the summary court martial versus the special the stakes were less in the summary as far as discharges go and we felt we had a somewhat strong case he suggested that I go and speak with the commander in charge of legal on the ship. He mentioned that he would call over there and set it up.
It was at this point that I believe the biggest injustice of all was committed. I spoke with the commander and told him of the new events with the sailors on restriction and I requested his help with several issues. I asked that he charge my roommates, I asked that he get the ice tray that the drugs were allegedly put on so that they may be tested, ect. I asked for a polygraph although inadmissible in court it might pull some weight when it came down to it and I asked that they take statements from everyone that had information in the case. Initially I was discouraged by his lack of interest in the whole matter and then he began to tell me how he would look into and get back with me. Over the next week I patiently awaited a response, which I never received. I was excited I actually believed that justice would be served and that I would be found not guilty and all the evidence would clear my name and I would be able to move on with my career. After about a week of not hearing back from anyone after being on restriction in lieu of arrest for over 60 days and mind you at this time the ship was in dry-dock so it was an industrial zone, it was unhealthy and sailors on restriction were having a lot of problems 4 sailors tried to kill themselves, their was a lot of tension between sailors and the master at arms, and all this aside I was innocent I was on R.E.L.A (restriction in lei of arrest) from December 6, 1999 - until my court martial in early February I spent Christmas and new years on that ship knowing I was innocent and I did it without incident I didn't flip out I didn't try and kill myself or go UA I really believed the charges would be dropped. Well about a week after speaking with the commander I still havened heard back from him I was starting to get restless why didn't anyone want to believe me I mean is it that hard to fathom a teenager putting drugs in your ice it happens all the time on TV. So I decided that I would go back to CVN 70 legal and speak with the commander again. I arrived at base legal to find the commander out of his office while their they did formally charge me and informed me that I would be going to a summary court martial and gave me the date. Now I was even more concerned what was being done about the information that had come to light over the last few weeks were they going to let me take a polygraph nobody could tell me anything and so went the frustrating introduction to the American legal system. While the day came for the court martial and my stomach was in knots none of my questions had been answered. I arrived at the court martial it would be heard by LT. R_ (jag). My Chief and my DEBO (division officer) the court martial started by stating the charges. Two of my roommates friends agreed to testified as to what my roommates had told them, but other than that it was a closed court their no mention of the ice tray it was never confiscated and never tested I was allowed to read my roommates statements in which they wrote that they didn't know anything about the events that transpired and that they didn't get along very well with me. We then called in my roommates in and they were asked about three questions in which they denied any involment and then they were dismissed they then called the two friends of my roommates and they both testified under oath about what my roommates had told them and they also had written statements also stating what they had just said in the courtroom that my roommates had put drugs in the ice tray over the weekend and then told everyone what they had done I also reminded the lieutenant that I had not been given the opportunity to take a polygraph and that the majority or my case had not even been allowed in the court she concluded the hearing and went to make her decision I still felt relatively sure that she would still find me not guilty or decide to do more investigation, but when she returned she said that she had found me guilty and that she was sentencing me to 22 days in the brig and giving my 8 days for time served.
I went on to serve 22 days in the brig without incident and then on April 12,2000 exactly one year to the day I was given an other than honorable discharge from the United States Navy.

3. When I joined the military in April of l999 I was a junior in high school I wanted to go to the service immediately and was from a rather low income family I went to the recruiter and told him that I was a junior and wanted to join immediately, initially he told me I would have to wait until I graduated but then several weeks later he called and said that their was a private school downtown that he would take me to he said I could pay $50 and I would be given a short 20 question test and if I past I would be given my high school diploma. So two days later that is what we did and in early April I received my high school diploma from Ashton Baptist Academy . My recruiter urged me to keep this quite and I did and the only reason I mention it now is in hopes that it will assist me in getting my discharge upgraded. Several months later I called the Ashton Baptist Academy in an effort to get another copy of my diploma and they were very reluctant to speak about the terms in which I graduated from their school and they said that they had a new principle and that they no longer assisted the military in getting diploma's for recruit's.

4. Furthermore when I joined my recruiter put on all my paperwork that I was African American I brought it to his attention that I was white and he said I had a better chance of getting in if I would say I was black so on all my enlistment paperwork you will notice that he has my race as black. I believe his real reason for doing this was he probably got an incentive for recruiting minorities.

I address the previous three issues not to get any recruiter in trouble or to bring a negative air to the military I simply want my discharge upgraded. I cannot stress this enough I was a good sailor I did my job and I was squared away and I believed I would succeed in the military. Then through the acts of childish drug users I have been kicked out of the military embarrassed in front of my family and friends. Now in conclusion I would like an upgrade and I am including several documents labeled below I also request that if this is going to be a lengthy process that I be given a way of tracking the status so that I may see exactly what's being done.

I felt the need to give the history of this case in hopes that you may find the information compelling in over turning my discharge to a general discharge. After my discharge I moved back home to Horn lake Ms. where my mother and 3 brothers reside I began working full time and have enrolled in Mississippi State University. I begin the summer semester of 2001. It is my hopes that maybe one day I can reenlist in the armed service and I am proud to have been given the opportunity to serve I do not know if those that drugged me were ever brought to justice they may still be serving in the Navy. I'm not including any documentation in regards to my case because I wasn't given any copies of my case. I was given copies of my service record, which I still have and nothing in it pertains to the case or my discharge. I enjoyed military life up until I was drugged and urge my brothers to look into going that route after high school if they don't decide to go to college I would destperatly like and really to be honest I deserve the chance to reinlist if I should so desire I was a good sailor and I was drugged by other sailors I almost still upsets me nearly a year later I was so proud and so were my parents and I would like to be given an upgrade so that my time in the service will have a somewhat positive impression when I refer to it when speaking to my brothers or others about the military. As I conclude this letter I would like to say that I'm going to save this document and continue forwarding to several different agencies in hopes that one day my discharge may be updated.

5. This office, acing as counsel, has reviewed the naval records of the above named applicant and respectfully submits them for consideration in accordance with the application for review of his naval record. We ask in accordance with Department of Defense Directive Number 1332.28 E4.3 EQLIITY In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in this subparagraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to: E4.3-3.1.12 Records of nonjudicial punishment

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
One page from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     990304 - 990411  COG

 Period of Service Under Review :
Date of Enlistment: 990412                        Date of Discharge: 000412

 Length of Service (years, months, days):

         Active: 01 00 01
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 57

 Highest Rate: ADAR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 2.00        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: None

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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

000118:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92 (2 specs):
         Specification 1: Failure to obey a lawful order on 11Dec99, to wit: wrongfully failing to report to muster at the prescribed time.
         Specification 2: Failure to obey a lawful order on 29Dec99, to wit: wrongfully failing to report to muster at the prescribed time.
          Charge II: violation of the UCMJ, Article 112A:
          Specification: Wrongfully use lysergic acid diethylamide (LSD) between 1Dec99 through 9Dec99.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $600.00, confinement for 22 days.
         CA action 000214: Sentence approved and ordered executed.
000228:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Commission of a serious offense and misconduct due to Drug abuse.
000228:  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.
000313:  Medical evaluation for drug abuse found the applicant not to be a drug dependent.
000315:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Commission of a serious offense and misconduct due to drug abuse (Use).

000405:  COMCARGRU Three directed the applicant's discharge under Other Than 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 000412 under Other Than 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).

Issue 1. The applicant states, he would like his letter and all issues contained addressed. The Board determined this is not a decisional issue. The NDRB will review all issues provided by the applicant.

Issues 2, and 3. The applicant provided a history of events that occurred while he was serving in the military. These are not decisional issues, and require on further comment. Relief denied.

Issue 4 and 5. The applicant states, he was a good sailor, he did his job, was squared away and just wants his discharge upgraded. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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. However, 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 any 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.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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