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NAVY | DRB | 2002_Navy | ND02-00995
Original file (ND02-00995.rtf) Auto-classification: Denied


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

ex-BM3, USN
Docket No. ND02-00995

Applicant’s Request
The application for discharge review, received 020708, requested that the characterization of service on the discharge be changed to honorable or entry level separation or uncharacterized. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I am requesting an upgrade to an Honorable. I severed my country with pride and I loved my job. I hate what I did. I had an addiction and I didn't know it. I was also running away from child hood abuse, which was trigger by a Chief in my last command by his mental abuse towards me. I would still be serving my country. I went in front of an admin board, they recommended I finish my tour. I have been clean and sober for 8½ years. I have helped numerous families and youth. I have done numerous missionary trips and shared my experience with them. I owe a lot of thanks to the Navy for helping me treat my addiction. I want to give back what I took away that is pride & professionalism. I gave 19 yrs 6 months. I am proud of my country & service. I have a lot to offer to people coming in and addiction already. We need to help them. I want to finish my career with Honor & Pride. I hope you make the right decision, people grow and mature from their mistakes, I will make the Navy proud once again of service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Period 87MAY16 - 94JUN14) (Copy 1 & 4)
Copy of DD Form 214 (Period 74NOV08 - 79MAY07)
Copy of DD Form 214 (Period 79MAY21 - 83APR14)
Copy of DD Form 214 (Period 83APR13 - 87MAY15)
Character Reference ltr from R_ B_, Sc.D., MBA, dtd Dec 10, 2001
Character Reference ltr from L_ K. S_, MS, PA, dtd Dec 7, 2001
Character Reference ltr from B_ B_, University Christian Church, dtd Dec 10, 2001
Character Reference ltr from Rev. J_ A. K_, dtd Dec 5, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        741108 - 790506  Transferred to IRR
         Inactive: USNR            790508 - 790520  To reenlist USN
         Active: USN                        790521 - 830414  HON
                                             830414 - 870515  HON

 Period of Service Under Review :
Date of Enlistment: 870516               Date of Discharge: 940614

 Length of Service (years, months, days):

         Active: 07 00 29
         Inactive: None

 Age at Entry: 32        Years Contracted: 4 (13, 9, & 21 months extensions)
Education Level: 12                        AFQT: 22

 Highest Rate: BM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (8)     Behavior: 3.97 (7)                OTA: 3.97

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Battle "E" Ribbon, Navy Sharpshooter Ribbon, SSDR (2), GCM (2), AFEM, GCUC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

870516:  Reenlisted for 4 years at NAVPHIBASE, Coronado, CA.

890512:  NAVDRUGLAB, San Diego, CA report: Sample received 01MAY89, tested positive for Amp/Methamp.

890615:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $600 per month for 2 months, restriction for 15 days, extra duty for 00 days, and reduction to E-5. No indication of appeal in the record.

890617:  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 under the UCMJ of 15 June 1989 for violation of UCMJ Article 112a Wrongful Use of a Controlled Substance.

890617:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890810:  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, and by unanimous vote recommended Applicant's retention.

891102:  Commanding Officer, USS CALLAGHAN, forwarded the action/recommendation of the Administrative Discharge Board to CNMPC, concurring with the recommendation of the Board that Petty Officer R_ (Applicant) be retained.
891124:  CNMPC requested the command reconvene administrative board to make specific finding regarding member's misconduct and also to provide member's current drug dependency status.

891211:  Commanding Officer, USS CALLAGHAN, forwarded the action/recommendation of the Administrative Discharge Board to CNMPC, concurring with the recommendation of the Board that Petty Officer R_ (Applicant) be retained. Commanding Officer’s comments (verbatim): "I concur with the administrative board's recommendation to retain Petty Officer R_ (Applicant). I believe that Petty Officer R_ (Applicant) has realized that he has made a serious mistake, and that he used extremely poor judgment. I am confident that because of family pressure and the certainty of separation and concomitant loss of benefits Petty Officer R_ (Applicant)'s drug incident will not be repeated. The CNO's anti-drug policy is very clearly outlined on CALLAGHAN and Petty Officer R_ (Applicant) fully understands it.

         Petty Officer R_ (Applicant) had previously been an outstanding member of CALLAHAN's crew and an asset to my command. Until this incident involving drug use, Petty Officer R_ (Applicant) has always set a fine example. Even through the adversity of this drug incident, Petty Officer R_ (Applicant) has continued to strive for excellence. Petty Officer R_ (Applicant) has demonstrated exceptional character in the past and his future contributions will benefit the Navy. Therefore this administrative board is forwarded with my strongest recommendation that Petty Officer K_ A_ R_ (Applicant) be retained for further Naval Service."

891218:  Commanding Officer, USS CALLAGHAN, advised CNMPC of the Admin Board Findings, since the findings and recommendation portion of the board was left out. Findings/Recommendation: Vote 3 to 0 Board found misconduct committed. Vote 3 to 0 Board recommended to retain member (Applicant).
900102:  CNMPC authorized Applicant's retention and directed a counseling/retention warning entry be made whereby advising Applicant of the consequences in which any further deficiencies in performance and/or conduct may result in processing for administrative separation.

900612:  CNMPC issued Applicant a Letter of Substandard Service due to personal behavior being below acceptable standards and advised improvement is mandatory and failure to improve could result in involuntary separation at EAOS and not eligible for reenlistment. Advised Applicant that this letter and related entries are adverse.

900620:  Applicant acknowledged the receipt and understanding of the Letter of Substandard Service. Applicant did not elect to make a statement.

910419:  Applicant requested removal from the Quality Control Program and removal of the reenlistment restriction. Applicant further requested to be authorized a 13 month extension to match his PRD.

910426:  Commanding Officer recommended to CNMPC, Applicant's request be approved.

910506:  CNMPC removed Applicant's reenlistment restriction.

930516:  Extended enlistment 13 months.

931209:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
Award: Restriction for 30 days, reduction to E-4. No indication of appeal in the record.
940513:  CO, USS JUNEAU, advised NAVMEDCEN San Diego, CA and BUPERS of Applicant transfer TEMDU for separation to NAVMEDCEN San Diego upon completion of Level III ARD treatment. Treatment completion date 10 Jun 94. Applicant signed Page 13 accepting Level III ARD treatment in lieu of 30 days inpatient treatment through DVA prior to discharge.

940421:  Applicant's discharge document (DD Form 214) reflects separation authority as: MILPERSMAN 3630620 & CNO WASHINGTON DC MSG DTG 210001Z APR 94.

940614:  Applicant discharged with a General (Under Honorable Condition) by reason of misconduct due to drug abuse.

 [SECOND ADMINISTRATIVE DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960614 with a characterization of general (under 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: 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. While he may feel that his childhood trauma was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on two separate occasions for illegal drug use thus substantiating the misconduct . It must be noted that most Sailors 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. An upgrade to honorable conditions would be inappropriate. Relief denied. For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.

Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge. Since the Applicant served in excess of 19 years, he cannot be given an uncharacterized or entry level separation. Relief denied.

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 be provided to receive consideration for relief, based on post-service conduct. The Board was impressed with the Applicant’s community service and international charity work. However, it does not mitigate his misconduct while on active duty. 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 5/93, effective
05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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