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NAVY | DRB | 2002_Navy | ND02-00190
Original file (ND02-00190.rtf) Auto-classification: Denied


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

ex-STSSN(SS), USN
Docket No. ND02-00190

Applicant’s Request
The application for discharge review, received 011226, 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. Subsequent to the application for review the Applicant obtained the Veterans of Foreign Wars as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted
1. Ladies and or Gentlemen. I, R_ E. V_ (Applicant), respectfully request an upgrade to my discharge due to the fact that my drug abuse was an isolated incident.
As you will notice quite a long time has passed since I was discharged. I guess it comes down to the fact that I wanted to feel like I earned or deserved it. I wanted to make sure I had learned something. Beginning in November of 1992, a lot of bad things happened to me all at once. I did a fairly good job dealing with it all, or at least I thought I had, until it manifested itself in January of 1994. I should have been professional enough to seek help on my own from a psychologist or something, but I didn't. Being a Christian it really hurt me to realize that in the end, I followed the wrong "god". I tried to place blame everywhere except where it belonged; and that's a really tough lesson when you realize that every time you point a finger, there's three more pointing back at you.
I don't want to ramble because I know that all of you are busy people. For nine years of my Navy career, I had an exemplary record. The last six months is what I'm referring to as an isolated incident, because relatively speaking that six months is a very small amount of time compared to the other nine years. I was by no means the "best" sailor, but I was a good sailor, and if the opportunity afforded itself to go back into the Navy and go back to submarines, I would jump at it. I sincerely apologize to the people that I let down and hurt with my selfish actions.
For these reasons I feel that an upgrade to "Honorable Discharge" is worthy. Thank you all for your time and perchance you read this within the next two months, have a great holiday season! Sincerely, (Signed by the Applicant)
2. Please see my personal statement. Also, upon being discharged I had about 39 days of leave on the books. This was not balance to EAOS, this was leave I had earned. Due to my discharge category, I was informed that I would not get paid for my unused leave, although I was supposed to be afforded the time to "burn" it which I never got either. Since this was leave I had earned, I would like to respectfully request to be monetarily compensated for that leave. Thank you.

3. (VFW's Issue) This office, acting as counsel, has reviewed the naval record 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 SECNAVINST 5420.17C Manual for Discharge Review 1984 that relief is warranted based upon consideration of par 1.12 CLEMENCY DISCHARGE.

 During this review it was noted the Applicant had been a TOP PERFORMER, TEAM PLAYER, CIVIC MINDED AND OUTSTANDING RECRUITER .

Recruiting duty is the most demanding duty in the United States Navy or in any of the Armed Forces today. We contend the Applicant qualifies for the Clemency program as outlined in the instructions. Please give full consideration to the entire service record as allowed by law.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Reference Letter from D___ L. R____ dtd March 23, 2001
Employment Reference Letter from P____ T___, Grocery Mgr, dtd July 26, 2000
Letter from Applicant dtd November 8, 2001
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        850116 - 890112  HON
         Inactive: USNR (DEP)     841019 - 850115  COG

 Period of Service Under Review :
Date of Enlistment: 890113               Date of Discharge: 940629

 Length of Service (years, months, days):

         Active: 05 05 27
         Inactive: None

 Age at Entry: 23                          Years Contracted: 6

 Education Level: 12                        AFQT: 88

 Highest Rate: STS1(SS)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.65 (8)    Behavior: 3.75 (8)                OTA: 3.75

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM, SSDR(3), ESQI, NUC, MUC, GCM(2), NDSM, Pistol Sharpshooter Ribbon

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 3630600.


 Chronological Listing of Significant Service Events :

890113:  Reenlisted onboard USS GUITARRO (SSN 665) for 6 years.

 940405:  NJP for violation of UCMJ, Article 86: Did on or about 0800, 940321, without authority, absent himself from his organization, Navy Recruiting Station, Christown, Arizona, to wit: Called QM1 A___ D____, Recruiter-in charge (RINC), on or about 0936, 940321, and notified him that he was late because he was waiting for his girlfriend to finish getting ready at his domicile, and did remain so absent until on or about 0947, 940321, violation of UCMJ Article 92: Did on or about 940321, violate a lawful general regulation, to wit: subsection 2635.704a of the Office of Government Ethics Standards of Ethical Conduct for Employees of the Executive Branch (5 Code of Federal Regulations part 2635) effective 930203 and implemented by DOD 5500.7R of 930820 by wrongfully driving a Government Vehicle to his domicile.
         Award: Reduction to E-5. No indication of appeal in the record.
940406:  Retention Warning: Advised of deficiency (Unauthorized absence for approximately one and a half hours on 940321 and wrongfully driving a Government vehicle to his domicile resulting in non-judicial punishment on 940405), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940512:  Retention Warning: Advised of deficiency (Unauthorized absence (UA) for approximately one hour and a half hours on 940425, UA for approximately one hour 20 minutes on 940505; UA for approximately three hours on 940506 which ultimately led to second non-judicial punishment on 940512), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940512:  NJP for violation of UCMJ, Article 86 (3 Specs) UA, Spec 1: Did on or about 0730, 940425, without authority, absent himself from his appointed place of duty, and did remain absent until on or about 0900, 940425; Spec 2: Did on or about 0730, 940505, without authority, absent himself from his appointed place of duty, and did remain absent until on or about 0820, 940505; Spec 3: Did on or about 0800, 940506, without authority, absent himself from his appointed place of duty, and did remain absent until on or about 1100, 940506.
         Award: Forfeiture of $150.00 pay per month for 2 months (suspended 1 month for 6 months). No indication of appeal in the record.
         
940516:  NAVDRUGLAB OAKLAND CA, reported Applicant’s urine sample, received 940502, tested positive for Amp/Methamphetamine.

940520:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by non-judicial punishment of 940405 and misconduct due to drug abuse as evidenced by a command directed urinalysis, confirmed positive urinalysis sample.
940525:          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 submit statements on his own behalf either verbally or in writing, the right to obtain copies of the documents used to support the basis for the separation and the right to a minimum of 2 working days to respond to the Notice of Notification Procedures Proposed Action. (Must be 30 days if member is in confinement or a reservist not on active duty). Election of this right requires Applicant date and sign this document 2 working days later than the receipt date of this letter of notification. If signature is dated earlier than the above stated time, this right is considered waived.

940609:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by non-judicial punishment of 940405 and misconduct due to drug abuse as evidenced by a command directed urinalysis, confirmed positive urinalysis sample.

940621:  BUPERS 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 940629 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).

Issue 1: The Applicant states his discharge was based on one isolated incident of drug abuse. The Applicant submitted to a urinalysis, which resulted in a positive finding for use of a controlled substance. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant was processed according to the rules and regulations existing at the time of his discharge. The discharge was proper and equitable. Relief is denied.

Issue 2: The Applicant contends he was not paid for leave he had on the books prior to his discharge. The Naval Discharge Review Board is appointed with the responsibility of examining the propriety and equity of an Applicant's discharge. This issue does not fall under the Board's review authority. Accordingly, no relief can be granted on this issue.

Issue 3: The Board disagrees with the Applicant's contention that his overall service record coupled with the hardships of recruiting duty warrants an upgrade to his discharge. 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. Under other than honorable conditions 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. T he Applicant’s service was marred by substance abuse, wrongful use of a government vehicle and unauthorized absences. 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 short of that required for an upgrade of his characterization of service.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. There was no evidence of impropriety, inequity or procedural irregularities in the Applicant’s discharge. The receipt of commendatory awards and favorable performance evaluations during the Applicant’s enlistment do not guarantee him an honorable discharge. The Board agrees, that the Applicant had good performance evaluations, but his performance prior to his NJPs and drug abuse does not mitigate his overall performance . The positive aspects of the Applicant’s military record do not outweigh the consequences of his misconduct. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. The Board is authorized to examine only the enlistment during which the other than honorable discharge was awarded. Honorable prior service is not cause for relief. The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant’s discharge to an honorable characterization. Relief denied.
Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. 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. Relief denied.

The Applicant 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 recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, 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 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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