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NAVY | DRB | 2002_Navy | ND02-00500
Original file (ND02-00500.rtf) Auto-classification: Denied


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

ex-PNSA, USN
Docket No. ND02-00500

Applicant’s Request
The application for discharge review, received 020305, 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 representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021115. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. To whom it may concern,

I was going to try & sum this up so I could fit it on the page provided, but I figured this issue was too important to ‘ sum up. ’ In November of 92 ’ I enlisted in the Navy for four years. My whole reason for enlisting at the time was to become a Navy SEAL. I was really anxious so I didn't wait on an "A" school, I just went in undesignated. Out of boot camp in San Diego I was stationed to VF-2 F-14 Squadron at Miramar. I really liked my squadron & my duty station so I wasn't in such a hurry for SEALS any longer. In May of 93 ’ I met my current wife A_ P_. Since she was stationed at Top-Gun (right beside VF-2) I just thought I would wait a little bit on SEALS. I did one WEST-PAC, and a number of work-ups stationed at VF-2. My job there was a Plane Captain and even though its undesignated I really liked what I was doing & my friends couldn't have been better. Life was good. In spring of 96 ’ my squadron decommissioned and I was sent to Naval Station 32 nd St. I thought that this was the perfect opportunity to start my SEAL training. My wife was stationed in Diego Garcia at the time (just to double her sea time) and I didn't really like my new job as a PN (Personellman). I had struck for that rate because it was open & was designated a SEAL rating. At my new duty station I had met a PN1 that had tried for seals twice already but didn't make it - he was still a big help since he knew what it took. After 2 months or so of training & logging my times I thought I was ready to extend for 2 years & start my life's dream, and then my world came apart. Around October of 96 ’ I was at my apartment with my roommate. (Her name was A_ too, she was my wife's best friend) A_ broke some bad news to me, I believe I was sitting around bragging about how confident I was that my wife would never cheat on me, when she did it too. A_ told me that in 95 ’ my wife cheated on me - to be honest I really didn't believe her until I called my wife. I remember that day vividly, not only was I cheated on but it was over a year ago & I never knew. I felt pretty miserable and to make it worse my wife had been in Diego Garcia doing God knows what! I went out that night looking to get even - no it wasn't to get even it was to escape my new world. Well, I found a party & one thing lead to another. I did cocaine that night & I'm not going to lie & say I was too drunk to remember, cause I do remember, I just didn't care. If someone at that time would have said, "R_, this is going to change the rest of your life" I might have given it a second thought but no one was there to say that, just me & my shattered confidence. The next week at my duty station there was a urinalysis. I knew I was going to get caught I just didn't understand why I - I still don't … really. 3 years & 11 months into a flawless 4 year enlistment I was discharged. Even though I hadn't been at my new duty station very long, the C.O., the Master Chief, my workcenter sup., & my PN1 went to bat for me at mast. Please look up my records & my Captain Mast report when making your decision. I know there's not alot of extra duty listed, but keep in mind my reason for enlisting was to become a SEAL. As a matter of fact if I can get this upgraded I think I'll try again - straight out of boot camp this time. Thank you for your time.

2. (DAV Issue) After review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his Discharge from a (Under Other Than Honorable Conditions) to a Naval Services Honorable Discharge. The (FSM) near end of enlistment, after hearing his wife's best friend confess to him that his wife now stationed in Japan has subsequently cheated on him he claims he because very distraught and used dugs to dull his pain of what he feels now as a I don't care attitude he abused cocaine, and subsequently was tested by the military drug abuse screening unit and separated from naval service with his current Discharge Under Other Than Honorable Conditions.
The (FSM) desires now to have his Discharge up-graded due to the fact that he feels now is able to handle his addiction to drugs and other family problems, which he claims subsequently lead to his dismissal from the Naval Services a career he loved and took pride in. The (FSM) now understands the severe consequents and extreme personal effects of having an OTH from the military had on his civilian life for using of drugs on or off active duty. The (FSM) Drug abuse that lead to his discharge he feels can be personally attributed to inability to handle both the stressful military and civilian life that lead him to experience the using of drugs on active duty. The (FSM) knows now that he should have enlisted other avenues to correct his negative behaviors and actions, but since he did not act in a positive manner, he now takes full responsibility for his negative actions and early separation from naval service a major mistake in his life that he regrets each and every day … The (FSM) now respectfully request an equitable standard be applied as well as equity in treatment in seeking the board's approval to afford him the opportunity to receive and an up-grade to his (Under Other Than Honorable) Discharge to an Honorable Discharge. The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and the reasons for his violations Drug Abuse and his subsequent dismissal for his UCMJ Article's of punishment from the US Naval Services. The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime. The (FSM) also states he had always tried to achieve Honor and Respect during his entire term of enlistment of military duty in the Naval Services but just failed on these cited incidents. We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistake he make and the negative behavior he exhibited and that occurred to him in fulfilling his military duty in the United States Naval Services. 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:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     921029 - 921118  COG

 Period of Service Under Review :
Date of Enlistment: 921119               Date of Discharge: 961125

 Length of Service (years, months, days):

         Active: 04 00 07
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 67

 Highest Rate: PNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.33 (3)                OTA: 2.94 (5.0 Evals)
 Performance: 3.70 (2)    Behavior: 3.80 (2)                OTA: 3.80 (4.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, NAVY"E"RIBBON, SSDR, GCA

 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 3630620.

 Chronological Listing of Significant Service Events :

960926:  NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 960916, tested positive for [cocaine].

960926:  Medical officer screening showed member not drug dependent.
 [Extracted from Drug and Alcohol Abuse Report].

961007:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: cocaine.
         Award: Forfeiture of $490.00 pay per month for 2 months, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
961009:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Non-Judicial Punishment in current enlistment.
961023:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
961105:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

961112:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [Only the most deserving and the very best qualified individuals should be retained in the Navy. PNSN P_ (Applicant) was fully aware of the ramifications of illicit drug use. His flagrant disregard for authority by the illegal use of drugs convinces me that he has no place in today ’ s smaller Navy. Retention of PNSN P_ (Applicant) would undermine my “ zero tolerance ” policy and be extremely prejudicial to good order and discipline. I strongly recommend he be separated with an Other than Honorable discharge.]

961115:  Commander, Naval Base San Diego authorized 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 961125 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 used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The record clearly reflects the Applicant’s deliberate disregard for the requirements of military discipline and demonstrated he had no potential for further service. Although the Applicant claims his drug use was in reaction to discovering that his “ wife had cheated on him … over a year ago, ” the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of non-judicial punishment (NJP) for his drug use. The Applicant requested and was granted an Administrative Discharge Board where the Board voted 3 to 0 that the Applicant had committed misconduct due to drug abuse and that the misconduct warranted separation, the Board recommended discharge under other than honorable conditions. The Applicant’s Commanding Officer also recommended separation stating that: “… His (Applicant ’ s) flagrant disregard for authority by the illegal use of drugs convinces me that he has no place in today ’ s smaller Navy. Retention of PNSN P_ (Applicant) would undermine my “ zero tolerance ” policy and be extremely prejudicial to good order and discipline. I strongly recommend he be separated with an Other than Honorable discharge. ”

After careful review of the entire record the NBRB determined the Applicant’s discharge characterization accurately reflects his service to his country. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. 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 that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. An upgrade to under honorable conditions would be inappropriate. It must be noted that most Sailor’s serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, Commanders and Separation Authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The discharge was proper and equitable. Relief denied.

Issue 2: 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence that the Applicant is living a drug-free life style, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The evidence submitted by the Applicant does not mitigate his conduct while on active duty. An upgrade based on post-service conduct is not warranted. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.

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 " 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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