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NAVY | DRB | 2002_Navy | ND02-00309
Original file (ND02-00309.rtf) Auto-classification: Denied


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


ex-SA, USN
Docket No. ND02-00309

Applicant’s Request
The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to honorable and that the RE code be changed to RE-1. 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 020829. 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 HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

 I am writing this letter to respectfully request a change in my discharge status. As of now my discharge is a "General" with an RE-4 code. I would like it changed to an "Honorable" with an RE-1 re-enlistment code. I would like to take the time to explain about the incidents behind my discharge and why I feel that I deserve this change of status. I will also give you an idea of my overall performance. My enlistment was a four year active duty contract in the Navy. I was discharged in 1996. While I was in Baharain (Persian Gulf) I made the regretful mistake of purchasing steroids. At Captain's Mast I received half of my monthly pay for two months, reduction in pay grade from E-3 to E-2, forty five days restriction to the ship and two hours extra duty every night. I served my punishment and I realized I deserved what I received. I also realize that I brought it upon myself. The happiest day of my life was "boot camp" Graduation. My family and I were so proud. I was very excited to report to my ship. I was "Gung Ho" and I worked hard. The whole time I was on active duty I made sure that my performance was "Top Self. I am the type of person that is always trying to improve. I thought that by taking the steroids I would improve my size and I would be able to do more. I clearly realize how wrong and stupid I was to think that. I could have been discharged with an OTH but I decided to fight it because I am worth more than that.
 At the time of this incident I was in my early twenties. Sometimes people just make the wrong choices when they are young. I know that there is no excuse and my behavior was unacceptable. After I made this mistake, all I wanted to do was learn from it, do the best I could to fix it and become a more mature and responsible man.
When I got out of the Navy I refused to collect un-employment. I did jobs like cleaning back yards and garages and sometimes even babysitting. These were not the jobs of my choice but I took pride in them and realized that at least I was working.
It has now been five years since I have been out of the Navy, during this time I have been a landscaper and a contract security officer for the Government at the Giamo Federal Building in New Haven Connecticut. I recently accepted a job as an iron worker. I enjoy this type of work. Last December I got married to a wonderful woman and we have the most beautiful five month old daughter. I work very hard to take care of them. I feel very proud of all of my recent accomplishments. I was born to be in the military and it would be an honor for me to he able to enlist in the Marines Reserves. I would also be a great benefit to my family, my country and to the U.S. Military, I have a lot to give. I would like to live my life to its fullest potential. I have a heart for the military and I would like to put my knowledge and experience to good use. My dreams is to serve in the Marines Reserves, not as a boy who made a very unwise decision but now as a man responsible and mature. My mind is strong and capable of facing what ever life has to hand me. The worst punishment of all through this whole thing is the shame and humiliation that I have felt these past five years.
My goal these past five years has been to constantly better myself and to grow personally, I am an ambitious person and want to be the best person I can. I am now ready to prove that I am worthy of a chance. I have never used drugs, I do not have a criminal record and I have never been in trouble with the law. I have been to many countries, there is no place like the USA. This country is appreciated and loved by me.
 I would be so proud to serve my country again. As a sailor I was outstanding, I received many medals and awards and good evaluations. I was in two Western Pacific deployments to the Persian Gulf in support of Desert Strike and Desert Shield in which I received many medals and awards including a South West Asia, Armed forces Expeditionary medals as well as many others. I am Respectfully requesting my discharge to be changed from a "General" with an RE-4 code to an " Honorable" with an RE-1 code. Please grant me this chance to stand up for my Country, With God's help and my inner strength I will be the best marine that I could be. I want to give back to this great nation what it has given me. In my heart I feel that I have worked hard and I deserve this chance. Thank you for taking the time to hear out my request.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's Letter (6pgs)
 Copy of DD Form 214
 Copy of Military/Other Benefits Listing
Employment Reference Letter
 Copies of Outstanding Performance Citations (2)
 Copy of Evaluation Report & Counseling Record (3pgs)
Copy of Enlisted Performance Evaluation Report (3pgs)
 Copy of Navy Occupation Training and Award History
Copies from Record of Proceeding of Administrative Board (7pgs)
Newspaper Articles (2pgs)
Copy of General Administrative and Disposition Procedures (1pg)
Copies from OPNAV Instruction 5350.4b (2pgs)
Copy of Report of Administrative Board (1pg)
Copy of Commanding Officer’s Recommendation (1pg)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
          Inactive: USNR (DEP)     930830 - 930915  COG
Period of Service Under Review :
Date of Enlistment: 930916               Date of Discharge: 970314

 Length of Service (years, months, days):
         Active: 03 05 29
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 42
Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.80 (1)    Behavior: 3.80 (1)                OTA: 3.80 (4.0 Evals)
 Performance: 3.50 (2)    Behavior: 3.00 (2)                OTA: 3.25 (5.0 Evals)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM(2), SSDR(2), BATTLE"E"RIBBON(3), MUC, SASM(w/B)
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.
Chronological Listing of Significant Service Events :

950912:  NJP for violation of UCMJ, Article 91: Insubordinate conduct to a petty officer, violation of UCMJ, Article 117: Provoking speech, violation of UCMJ, Article 134: Drunk and disorderly.
Award: Extra duty for 15 days. No indication of appeal in the record.
960917:  DAAR indicates applicant possessed and abused steroids, applicant admitted to buying and using a controlled substance, applicant recommended for separation from service not via VA hospital.
960917:  NJP for violation of UCMJ, Article 92: Wrongful possession of drug paraphernalia, violation of UCMJ, Article 112a: (2 Specifications), Wrongful possession of steroids and wrongful use of steroids.
         Award: Forfeiture of $490.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
960918:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse as evidenced by Commanding Officer's NJPs held on 950912 and 960917.
960920:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970129:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had not committed misconduct due to the commission of a serious offense, had committed misconduct due to drug abuse, and recommended that the applicant be separated (suspended for 6 months). Recommended discharge under honorable conditions (general).

970409:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970314 under honorable conditions (general) 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. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.
There is credible evidence in the record that the applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. Despite the applicant’s record of service prior to his drug abuse, the discharge was proper and equitable. While he may feel that his youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. Relief denied.
The applicant’s discharge characterization accurately reflects his service to his country. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief not warranted.

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. Representation at a personal appearance hearing is recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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