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NAVY | DRB | 2003_Navy | ND03-00359
Original file (ND03-00359.rtf) Auto-classification: Denied


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

ex-IT3, USN
Docket No. ND03-00359

Applicant’s Request

The application for discharge review was received on 20021227. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant lists the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031215. 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: GENERAL (UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative ( AMERICAN VETERANS):
“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in her request for a discharge upgrade of his current General, Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from May 24, 1999 to June 25, 2002 at which time she was discharged due to Misconduct.

The FSM contends the current discharge is improper because her behavior was directly related to the self treatment of her cancer, and her immaturity / inability to handle the problems that came about due to side-effects of the treatment of the cancer.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, the FSM submits character reference statements from MM1 / SS J_ S_, Rev. A_ F_, and L_ M_. All attesting not only to her good character, both in service and after, but also noting her volunteer activities with the local education, civic, and religious communities. Based on this information it is readily apparent that the FSM has turned her life in a positive direction, warranting a review under the premise of equitable relief.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the current discharge to reflect an Honorable discharge, as she is definitely not the same person that was discharged in 2002 and even an upgrade would provide some relief and allow for greater self development of the FSM, but leave that to a determination by the Board.

We ask for the Board’s 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.

Respectfully,”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
2 Copies of DD Form 214 (Member 4 & Member 1)
2 Character Reference undated letter from MM1(SS) J_ K. S_
 Character Reference letter from Rev. A_ F_, The New Testament Church, dtd Feb 4, 2003
 Copy of Applicant’s undated letter to Congressman R_ S_ (2 pages)
Character Reference ltr from L_ A. M_, dtd Feb 1, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990517 - 990523  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990524               Date of Discharge: 020625

 Length of Service (years, months, days):

         Active: 03 01 02
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: 14½               AFQT: 53

 Highest Rate: IT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (3)     Behavior: 3.0 (3)                 OTA: 3.06

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

990827:  Counseling: Advised of deficiency (dress/appearance), notified of corrective actions and assistance available.

990901:  Defense Investigative Service Report contained in service record concerning possible fraudulent enlistment in the Navy.
991202:          Command’s Investigation Report: Recommended Applicant’s retention in the Naval service, but not classified as Information Systems Technician (IT).
000201:  Applicant voluntary statement concerning possible fraudulent enlistment investigation contained in service record.
000216:  SJA concurred with the findings of fact, opinions and recommendation of the Investigating Officer.
000313:  CO, Service School Command, Great Lakes recommended to the Commander, Naval Training Center, Great Lakes, Applicant’s retention in the Navy as result of an investigation conducted to inquire into the possible fraudulent enlistment. Further recommended a counseling/warning sheet be issued. Applicant failed to disclose the following:
 1 - 21 May 1998 – Arrested and charged with petit larceny by the White Plains Police Dept, NY. Court set the charge as “conditional”, which meant that as long as she did not commit any more offenses, the charges would be dismissed latter.
2 - 27 May 1998 – Arrested for petit larceny and possession of a controlled substance by the White Plains Police Department, NY. Court also set these charges as conditional.
3 - 28 Oct 1998 – Arrested for petit larceny by the New York Police Department. Applicant pled guilty and was ordered by the court to serve two days of community service.
4 - 24 Jan 1999 – Arrested for petit larceny and possession of a controlled substance by New York Police Department. Court set these charges as conditional.
5 - 2 Feb 1999 – Arrested by the New York Police Department, for theft and criminal trespass. Applicant pled guilty and was released after serving time of two days.
6 - 13 April 1999 – Arrested by the New York Police Department, for petit larceny. Court dismissed the charge.
7 – Applicant voluntarily admitted to experimenting with marijuana twice and cocaine three times. This occurred between May 1996 and October 1998 prior to her enlistment. She stated she did not have any illegal drug usage by marking “No” in Blocks 24a, b, and c. of her SF86.
8 – Financial delinquencies or history on her SF86. Debt total approximately $6112.00.
9 – History of foreign activities and/or visits to Tijuana, Mexico in Feb 1999, but there were no indications of illegal activity or security violations.
Applicant stated that she did inform her recruiter of her past criminal activity.
000727:  CO, Service School Command, Great Lakes, recommended to CNPC Applicant be retained in lieu of separation for fraudulent enlistment.
000801:  CNPC authorized Applicant’s retention and directed a Page 13 counseling/warning issued.

000809:  Retention Warning: Advised of deficiency (defective enlistment and induction due to fraudulent entry into naval as evidenced by your failure to disclosure previous arrests, drug use and financial delinquencies), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010824:  Applicant diagnosed with stage III nodular melanoma of the right thigh receiving alfa-interferon on the Kirkwood regimen for follow-up.

011102:  Released from Addictions Rehabilitation Program to the command for continuing care plan.

011207:  Retention Warning: Advised of deficiency (diagnosed as alcohol dependent by a medical representative, and are to abstain from the consumption of all alcohol), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020312:  Completed treatment for alcohol dependency. Directed to participate in prescribed after care plan.
020322:  Applicant consented to voluntarily providing a urine sample.

 020328:  Applicant hospitalized at NATCHAUG HOSPITAL, MANSFIELD CENTER CT.
020402:  NAVDRUGLAB Jacksonville, FL report: Sample received on 27 Mar 02, tested positive for cocaine.
020408:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense, and alcohol rehabilitation failure.
020408:  Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
020501:  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, but did support commission of serious offense and alcohol rehab failure, that the misconduct warranted separation, and recommended discharge with a General (Under Honorable Conditions).

020516:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), misconduct – commission of a serious offense and by reason of alcohol rehabilitation failure. Commanding Officer’s comments (verbatim): “I agree with the Board’s recommendation for separation, however, I strongly disagree with the Board’s recommendation for a General Discharge (Under Honorable Conditions). The Board supported a finding that IT3 R_ (Applicant) committed drug use; there is nothing honorable in that fact. Issuance of a General Discharge undermines the Navy’s policy of zero tolerance of drug use. I strongly recommended that IT3 R_ (Applicant) be separated from the Naval service with a characterization of service as Other Than Honorable.

020610:  CNPC directed the Applicant's discharge with a general (under 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 20020625 with a General (Under 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 contends the current discharge is improper because her behavior was directly related to the self-treatment of her cancer, and her immaturity to handle the problems that came about due to side effects of the treatment of cancer. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. The discharge was proper and equitable. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. As this time, the Applicant has not provided sufficient documentation for the Board to consider. Therefore, relief is not warranted.

 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 33, effective 16 Jul 2001 until 21 Aug 2002, 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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