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NAVY | DRB | 2002_Navy | ND02-00552
Original file (ND02-00552.rtf) Auto-classification: Denied


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

ex-AS2(SW), USN
Docket No. ND02-00552

Applicant’s Request
The application for discharge review, received 020314, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021217. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Dear Sir,

My name is (Applicant), AS2 (Applicant) in the Navy. I have served my country proudly for five years, and had plans to make a career with the Navy.

I never had any problems until I arrived to my 2'd duty station N.A.S. Key West, Florida, USA. I arrived to N.A.S. Key West September 29, 2000. I received sailor of the month for November, 2000. I made 2 nd class (E-5) in December, 2000. Life was great. I was attending St. Leo University in Florida and was carrying a 3.67 GPA. My plan was to attend Officer's Training School after receiving enough credits.

On February 19 th Legal notified me that I came up positive. I know for sure it was a false positive for cocaine. I had not ever done drugs in the Navy. Prior to the Navy, I admitted to smoking marijuana. From there Legal and the command were telling me not to fight it because there would be no chance of winning...because all the Navy needs is a paper positive.

A couple of weeks later NCIS came and arrested me for conspiracy to falsifying I.D.'s. A couple of guys who worked under my command at my shop, stole my I.D. and made copies of the back (Government Military I.D. card) and some how laminated it. I had friends that knew that these guys were trying to pin this all on me because everybody figured I was getting discharged for abuse of drugs (these 2 navy guys had also been fired from jobs they had outside of their military jobs, for stealing copy equipment). I hired a civilian lawyer, because my appointed JAG Defense was out of Jacksonville, Florida and could not investigate anything until my hearing. I think the most corrupt thing about this is they couldn't offer me a Court Martial, which I requested, due to the lack of evidence that the Navy had. So, the Navy gave me an Admin. Separation Board. Suffice to say, $7500.00 later and a lot of research by my lawyer M_ B_, and Lt. L_, the Board dropped all allegations and allowed me to stay in the Navy. They could see that I was an outstanding sailor from my personnel records and referred my cocaine charge to Campell Law. The other charge, conspiracy of falsifying Government I.D.s, never went to the Board because of un-credible witnesses and Navy's lack of evidence.

I wish I could give full details, but it would probably take me 3 days to write this, which I am certainly willing to do if asked to. I wish I could speak with someone personally...face to face.

After my Maintenance Officer abandoned me (by mentally convicting me...without any evidence...and sent me TAD) I went back to work June 5, 2001. I went back to the shop, where I was originally assigned, almost 3 months later, and the production line immediately came back up because I was one of there best techs.

About a month later my M. O. called me in and said that I needed to go over to Legal because I was being discharged for using my Government card, which I admitted to. I did use the card, as I was told when given it that it was O.K. I had a -0- balance on the card. I have proof from Bank of America. Legal said I had one week to pack my things and check off base. Also the civilian that issues Government credit cards said that I would have a month to pay off any balances when I used it. I usually did pay within a few days ... I also have a witness to that. I demanded to talk to my C.O. (commanding officer) of N.A.S. They told me I needed an appointment, and that he also was out of town. I also went to Legals JAG officer, but he was out of town on leave. I was notified of all this on July 6 th , 2001, about 1500, and had till the next Friday (the 13th ) to be checked out and off base, with nobody around and nobody that could help me.

I have no documents, neither from the Board or anything that I've seen that could even remotely accuse me of being guilty. I wish to see this get lifted and would like an Honorable Discharge, and my RE-4 code lifted so that I may re-enlist someday if I decide after hopefully regaining my Montgomery G.I. Bill, and graduating from college.

My DD14 says "misconduct" with a code of drug abuse ... this was dropped by the Admin. Board. The only thing they came up was my using my Government credit card. I was told, "You have one week left, and then will be discharged". I am confused and would like to find out what is going on.

I am sending with this letter my official records that I finally received (after waiting over 23 weeks to receive from Personnel Records Center).

Again, I would like to emphasize how much I loved serving my country in the military. I advanced quickly and made admirable strides while serving in the Navy during my 5 years (my records will corroborate that fact). I worked hard and was planning to become an officer, a career decision I made when I re-enlisted a year ago. These allegations were and are false, and I was acquitted of any wrong doing. I have never signed papers to the contrary or was given papers indicating any of the Navy's actions towards me.

I would ask that you review and research my case. In light of what is happening in our country right now...I wish I was still able to serve my country. The loss is the Navys, but also mine.

Thank you for your time and consideration. I would hope to hear from you soon, and please do not hesitate to contact me if I can be of further assistance. Sincerely,
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter to member of the United States House of Representatives dated August 27, 2001
Letter to Applicant from Member of Congress dated September 10, 2001
Letter from Applicant dated September 26, 2001
Copy of DD Form 180 dated September 26, 2001
One hundred and five pages from Applicant's service record
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               960725 - 000615  HON
         Inactive: USNR (DEP)     960627 - 960724  COG

 Period of Service Under Review :
Date of Enlistment: 000616               Date of Discharge: 010713

 Length of Service (years, months, days):

         Active: 01 00 28
         Inactive: None

 Age at Entry: 23                          Years Contracted: 3

 Education Level: 12                        AFQT: 54

 Highest Rate: AS2(SW)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

Military Decorations: None

 Unit/Campaign/Service Awards: NUC, MUC(2), NER(3), GCM, SSDR, NATO, KCM, EAWSI

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

000616:  Applicant reenlisted for 3 years.

 010213:  NAVDRUGLAB, Jacksonville, FL reported Applicant's urine sample, received 010208, tested positive for cocaine.

010405:  Report and Disposition of offense(s): Article 81: Conspiracy on 2 Mar 01 with Aviation Support Equipment Technician Airman to commit an offense under the Uniform Code of Military Justice, to wit: wrongful alteration of a military identification card, Article 134: wrongfully and falsely alter the military identification card of an Aviation Support Equipment Technician Airman by photocopying the reverse side of his own military identification card and affixing said photocopy to the reverse side of said Airman's military identification card and re-laminating said military identification card on 8 Mar 01.

010409   Applicant demanded trial by court-martial in lieu of non-judicial punishment for alleged offenses against the UCMJ, Article 81 and Article 134.

010427:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.
010427:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010601   Notice to dismiss administrative action for separation submitted by Applicant’s civilian attorney.

010604   Response to the Applicant’s attorney’s notice concluded the rules and standards germane to administrative separation proceedings are prescribed by the Chief of Naval Personnel as set forth in MILPERSMAN. The rules and standards that apply to criminal prosecutions (i.e., court-martial) regarding drug use prosecutions are not directly relevant.

010606:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, did not find that Applicant had committed drug abuse. The Board by unanimous vote did find that the Applicant had committed a serious offense, that this misconduct warranted separation, recommended discharge characterization of general (under honorable conditions) and recommended discharge be suspended for 12 months.

010615:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense. Commanding Officer ’ s summary of military and civilian offenses: misconduct – drug abuse as evidenced by a positive urinalysis for cocaine and misconduct – commission of a serious offense as evidenced by Naval Air Station Key West Security Division report of investigation and witness testimony.

010703:  CNPC directed the Applicant's discharge with a general (under 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 010713 with a discharge characterization of general (under 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 that he served his country proudly for five years and
never had any problems until he arrived at NAS Key West, Florida. This Board is
authorized to examine only the enlistment during which the other than fully honorable
discharge was awarded. The Applicant will note that the Board found an
administrative error in his DD Form 214 and that it should be corrected to reflect his
prior honorable service from July 25, 1996 to June 15, 2000. Honorable prior service
is not cause for relief. Relief denied.

Issue 2: The Applicant was not discharged for drug abuse but rather for commission of
a serious offense, to wit: conspiracy. Block 26 of the Applicant ’ s DD Form 214 is
correctly marked “ GKQ , ” this is the appropriate code for misconduct – commission of
a serious military or civilian offense. The Board found the Applicant ’ s discharge to be
proper and equitable. An administrative separation for the commission of a serious
offense does not require adjudication by non-judicial or judicial proceedings (i.e., court
martial); however, the offense must be substantiated by a preponderance of evidence.
In the Applicant’s case, the Naval Air Station Key West Security Division Report of
Investigation and the unanimous vote of the Administrative Discharge Board finding
 that the Applicant had committed a serious offense (conspiracy) was sufficient substantiation. Relief denied.
Issue 3: 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.
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. 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 31, dated 20 Feb 01, effective 25 Jan 01 until Present, 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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