Search Decisions

Decision Text

NAVY | DRB | 2002_Navy | ND02-01063
Original file (ND02-01063.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND02-01063

Applicant’s Request
The application for discharge review, received 020725, 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 030414. 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. To Whom It May Concern:

My name is (Applicant); on December 11 th 1997 I came into the Untied States Navy with the highest of aspirations. On May 24h I left the Navy heartbroken and cheated.

When I entered basic training in Great Lakes, Illinois I was seared, nervous, but yet I still so proud of myself. I was following in the footsteps of my father, who followed his father steps into the Finest Navy in the world.

While in basic training I was a model recruit, I was a section leader for the duration of training. After basic training ended, my orders sent me to Hospital Corpsmen "A" school at NTC, Great Lakes. There I graduated with honors. From NTC my orders then took me to Naval Hospital Camp Pendleton for three months of temporary duty until I classed up for Field Medical Service School. There I also graduated with honors. From FMSS I went to Naval Medical Center, San Diego also for three months of temporary duty, until I classed up for Preventive Medicine Technician school. I graduated from PMT School on August 25th 1999. Before graduating I was issue orders to Naval Ambulatory Care Center, Newport, Rhode Island, where I would carry out my PMT duties.

While at NACC Newport, RI I received Non-judicial punishment for assault charges. I carried out my punishment, and when I returned to NACC Newport, I volunteered myself to the Anger management counseling with social workers. I also found the hidden reason for my short temper. Dr. G M in the NACC Mental Health clinic diagnosed me with major depression disorder, social anxiety disorder, and obsessive-compulsive disorder. While under going treatment for my disorders I was a key witness in an NCIS investigation on a fellow corpsman at NACC. They were investigating connections he had with drug dealers, he also was a user/dealer. Since I told NCIS all I know about this corpsman he lied to NCIS and told them that I possessed illegal steroids in my vehicle. NCIS investigated this matter and came up with nothing due to the fact that I did not possess any drugs. However, they were also investigating yet another lie that I used illegal steroids while stationed in San Diego, CA. I admitted that I did use sports supplements while training for FMSS, all legally purchased at GNC. Due to these lies and allegations I had to attend Captain's Mast, however, there is a clause and an article in the UCMJ that states any offence more than 2 years prior cannot be held up. Since these allegations were from 1998 and I was tried in 2000 well over two years prior, I was still given an other than honorable discharge. So I'm confused how can this so-called Captain (G_ A_, ret.) discharge me from the Navy on these grounds? That is the reason for my inquiry. I was not given the proper discharge, or the proper procedure, I was never given the proper opportunity for an Admin board to correct my discharge or retain me in the Navy I loved.

I feel that the type of discharge I was handed is totally unjust and wrong, considering my ratings and my impeccable work ethics. The fact that other individuals have face the same captain on several counts of article 112a of the UCMJ, where retained in the Navy, where do this captain's morals and obligations lye? The military has zero tolerance for drug use. So tell me why he has taken this policy and distorted it into his own policy, he obviously has tolerance for illegal drugs in the military. This proves that I was unfairly singled out and discharged for unjust reasons. I should still be in the Navy on active duty defending my country in a time of desperate need. Not only did he hurt me, but also he hurt the country I was giving my life to. Thank you for your time.

Respectfully, (Applicant)

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference from a Captain, USNR (Ret.), dated June 14, 2001
Letter from Rear Admiral, dated January 10, 2000
Letter of Appreciation from Rear Admiral, from December 9, 1998 to February 5, 1999
Certificate of Outstanding Performance, dated June 30, 2000
Letter of Appreciation, dated June 5, 2000
Evaluation Report and Counseling Record, dated July 15, 2000
Character reference from Applicant's father, dated August 19, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971125 - 971210  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 971211               Date of Discharge: 010524

 Length of Service (years, months, days):

         Active: 03 05 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 61

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.67 (3)    Behavior: 2.20 (5)                OTA: 2.97

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation (2)

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

000620:  NJP for violation of UCMJ, Article 128: Assault. Dismissed by CO at mast. [Extracted from Commanding Officer's letter dated 010502.]
001103:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order issued by Captain, to wit: a military protective order, dated 000925, concerning his contact with HM3, did on 001018 wrongfully attempt to speak with HM3, violation of UCMJ, Article 128: Assault HM3 at the BEQ on 2000, 000924.
         Award: Admonition in writing, forfeiture of 1/2 months pay per month for 2 months, correctional custody for 30 days, reduction to HA. No indication of appeal in the record.
001103:  Applicant found fit for confinement.

 001128:  Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 128 - Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010323:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 112A: Wrongful use of controlled substance (dismissed due to statue of limitations for NJP), violation of the UCMJ, Article 128: Assault. [Extracted from Commanding Officer's letter dated 010502.]
         Award: Restriction and extras duty for 45 days. No indication of appeal in the record.
010413:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to pattern of misconduct.
010413:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
010502:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and pattern of misconduct. Commanding Officer’s comments (verbatim): [HA C_ (Applicant) was processed for administrative separation due to drub abuse and pattern of misconduct. In the one and a half years he has been at this command, HA C_ (Applicant) has repeatedly been a problem. Every avenue to help support this sailor has been utilized to no avail. He has demonstrated that he has less than adequate control over his behavior and cannot or will not comply with the rules and regulations of the United States navy, nor meet the standards expected. He has shown a complete lack of respect for other individuals, his chain of command, and for the Navy’s core values. His presence in the command has a detrimental effect on good order and discipline and on the morale of the other troops. His repeating pattern of violence has no place in the Navy and leave me with little choice but to process him for separation. I have requested that he be separated from the naval service with an other than honorable discharge for drug abuse and pattern of misconduct.]

010516:  COMNAVREG NE Groton, CT directed 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 010524 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: 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. Furthermore, the Board disagrees with the Applicant’s assertion that his overall service record warrants an honorable discharge. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a sailor. T he Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for assault upon a petty officer, an offense triable by court-martial . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. An upgrade to honorable conditions would be inappropriate. 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. Relief denied.

Issue 2: Regarding the charge of illegal drug use, it was dismissed at the NJP due to expiration of the statute of limitations. However, there is no time limitation between the commission of an offense and the initiation of administrative separation proceedings. Additionally, a military conviction at NJP is not necessary to process a Sailor for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The Applicant used illegal drugs and warranted processing for separation, normally under other than honorable conditions. Furthermore, the Board disagrees with the Applicant’s claim that he was never given the opportunity for an Administrative Board. The Applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 2001. 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. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation 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

Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-00170

    Original file (ND99-00170.rtf) Auto-classification: Denied

    ND99-00170 Applicant’s Request The application for discharge review, received 981113, requested that the characterization of service on the discharge be changed to honorable. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. THE MARIJUANA THAT WE SMOKED WAS THE MARIJUANA THAT H_ HAD GIVEN ME IN JANUARY.

  • NAVY | DRB | 2002_Navy | ND02-00948

    Original file (ND02-00948.rtf) Auto-classification: Denied

    ND02-00948 Applicant’s Request The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to general/under honorable conditions. I requested legal representative or counsel and was refused legal representative or counsel before, or after mass at any time while attached to the ship. 890622: COMNAVMILPERSCOM WASHINGTON DC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due...

  • NAVY | DRB | 2004_Navy | ND04-00143

    Original file (ND04-00143.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Certificate from Phi Theta Kappa, dated October 6, 2002 The National Dean’s List certificate, dated 2002-2003 Article written by Applicant and P_ I_, MD Applicant’s DD Form 214 (Member 1 and 4) PART II - SUMMARY OF SERVICE Prior Service (component,...

  • NAVY | DRB | 2002_Navy | ND02-01170

    Original file (ND02-01170.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Five pages from Applicant's service record Applicant's DD Form 214 Statement from Applicant, dated January 17. 010724: 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...

  • NAVY | DRB | 2006_Navy | ND0600516

    Original file (ND0600516.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The NDRB advised the Applicant that it normally first conducts a documentary record discharge review and that he would still be eligible for a personal appearance hearing if he requested one within 15 years from his discharge date. Relief is not warranted.The Applicant requested that the Board upgrade his characterization of...

  • NAVY | DRB | 2005_Navy | ND0501045

    Original file (ND0501045.rtf) Auto-classification: Denied

    ND05-01045 Applicant’s Request The application for discharge review was received on 20050606. The Commanding Officers. Appeal denied 031103.031008: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of commission of a serious offense-misconduct.031008: Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge...

  • NAVY | DRB | 2001_Navy | ND01-01009

    Original file (ND01-01009.rtf) Auto-classification: Denied

    ND01-01009 Applicant’s Request The application for discharge review, received 010730, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. AFTER MY CAPTAINS MAST WITHOUT ANY PROMISES OF BEING RETAINED IN THE NAVAL SERVICE I CONTINUED TO DO THE BEST JOB I COULD, I REPRESENTED THE COMMAND AT FUNERAL SEVICES SIDE BOYS AND RECEIVING OUTSTANDING ON COMMAND INSPECTIONS. 970407: BUPERS directed the applicant's discharge...

  • NAVY | DRB | 2003_Navy | ND03-00280

    Original file (ND03-00280.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general. Decision A documentary discharge review was conducted in Washington, D.C. on 20031114. 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): Inactive: USNR (DEP) 000504 - 000516 COG Active: None Period of...

  • NAVY | DRB | 2001_Navy | ND01-00315

    Original file (ND01-00315.rtf) Auto-classification: Denied

    ND01-00315 Applicant’s Request The application for discharge review, received 010122, requested that the characterization of service on the discharge be changed to general/under honorable conditions. I had no history of drug abuse; I had taken random urinalysis for over five years in the military, and never came up positive for any drugs or alcohol. 901023: Commanding Officer, 2d Medical Battalion recommended discharge under other than honorable conditions by reason of misconduct due to...

  • NAVY | DRB | 2004_Navy | ND04-01076

    Original file (ND04-01076.rtf) Auto-classification: Denied

    ND04-01076 Applicant’s Request The application for discharge review was received on 20040622. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). 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.