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NAVY | DRB | 2003_Navy | ND03-00222
Original file (ND03-00222.rtf) Auto-classification: Denied


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

ex-RM3, USNR(TAR)
Docket No. ND03-00222

Applicant’s Request
The application for discharge review was received on 20021118. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

 Applicant’s issues, as stated on the application:

“1. Please consider the fact that, I helped to serve our country with honorable service for over (14) fourteen years.

2. Prior to my discharge I was involved in a very harsh separation, which resulted in a divorce and separation from my two children.

3. I contributed many off-time hours with the community in providing security with a nieborhood watch association.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“4. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     840510 - 850312  COG
         Active: USN                        850313 - 890221  HON
                  USNR             890222 – 930201  HON
                  USNR             930202 – 980720  HON

 Period of Service Under Review :
Date of Enlistment: 980721               Date of Discharge: 000107

 Length of Service (years, months, days):

         Active: 01 05 17
         Inactive: None

 Age at Entry: 36                          Years Contracted: 2

 Education Level: 12                        AFQT: 34

 Highest Rate: RM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (2)    Behavior: 2.50 (2)                OTA: 2.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM, CAR, NUC, MUC, NER, GCM (3), NDSM, CGSOR, SASM, HSM, SSDR (3), KLM

 Days of Unauthorized Absence: 41

 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 :

980721:  Applicant reenlisted for two years.

 981208:  BUPERS for departmental review recommending a second period of limited duty for 6 months to expire 990515.

990513:  Applicant self-referred for alcohol treatment. Has had no alcohol related incidents. He is motivated for treatment in past because his wife is threatening divorce if he doesn’t stop drinking. Last drink was 12MAY99.

990524:  Commenced Substance Abuse Rehabilitation treatment and completed treatment on 18JUN99.

990911:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 990903 until 1130, 990907 (4 days/surrendered).
         Award: Forfeiture of $200 per month for 1 month, reduction to RM2. Punishment suspended for 6 months. No indication of appeal in the record.
991015:  Vacate suspended forfeiture and reduction awarded at Commanding Officer’s NJP dated 990911.
991116:  NJP for violation of UCMJ, Article 86: Absence without leave 0730, 991012 0735, 991104 (22 days/surrendered).
         Award: Restriction for 60 days, reduction to RM3. No indication of appeal in the record.
991202:  Fleet Mental Health Unit: Pt is at TPU awaiting admin separation. He has been UA, has failed drug test, and has history of alcohol dependence. Additional stressors are loss of income and being divorced by his wife.
 Diagnostic Impression: Axis: Acute Stress Reaction. ETOH dependence by history. Substance abuse by history. Axis II: Personality disorder, NOS with antisocial features. Axis III: None known. Axis IV: Multiple severe stressors described above. Axis V: GAF 55-60 agitated, depressed, and anxious.
000107:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority: NAVMILPERSMAN, Article 1910-146.

         DISCHARGE PACKAGE IS MISSING

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000107 under other than honorable conditions for misconduct due to drug abuse (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 requests the Board consider the fact that he served “our country” with honorable service “for over 14 years”. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by the award of NJP on two occasions for two unauthorized absences totaling 26 days and use of illegal drugs. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief on this basis is denied.

The NDRB noted an administrative error on the DD Form 214 issued on 20000107. Block 18 did not reflect the Applicant’s previous years (890222 – 980720) of honorable service. The Board notified the Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.

Issue 2. The Applicant contends that prior to his discharge he was involved in a very harsh separation with his spouse. The Board acknowledges the personal challenges that the Applicant experienced with his family, however, the extensive counseling that the Applicant received to address family concerns is well documented. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief on this basis is denied.

Issues 3 and 4. The Board is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. Examples of documentation that should be provided to the Board include proof of educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of drug free existence. At this time, the Applicant has not provided any documentation for the Board to consider. Therefore, relief is not appropriate.

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 such 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 24, effective 20 May 99 until 26 March 2000, 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


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