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NAVY | DRB | 2003_Navy | ND03-00878
Original file (ND03-00878.rtf) Auto-classification: Denied


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

ex-SMSA, USN
Docket No. ND03-00878

Applicant’s Request
The application for discharge review was received on 20030416. The Applicant requests the characterization of service received at the time of discharge be changed to honorable, general/under honorable conditions, entry level separation or uncharacterized and the reason for the discharge be changed to medical disability. The Applicant requests a personal appearance discharge review before a traveling panel closest to Graham, Texas. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “I RESPECTFULLY REQUEST MY DISCHARGE AND RE-CODE BE UPGRADED SO THAT I CAN OBTAIN A CREDIBLE JOB. (SAY THE POLICE FORCE) THAT OF WHICH MY CURRENT DISCHARGE HOLDS ME BACK FROM MOVING FORWARD.

2. I RESPECTFULLY REQUEST A CHANCE TO FINISH WHAT I STARTED BACK IN 1990 WITH RESPECT AND HONOR.

I ONLY ASK FOR THESE REQUSTS BECAUSE, SINCE BEING MAINTAINED ON MEDICATION. I HAVE BECOME A VOLUNTEER FIREFIGHTER FOR THE CITY AND THE COUNTY. I ALSO SERVE ON THE BOARD OF DIRECTORS FOR THE YOUTH SOCCER ASSOCIATION AND ALSO COACHED THREE YEARS.
I WANT MY CHILDREN TO LOOK UP TO WHAT I CAN BECOME AS A HUMAN BEING AND NOT JUST SOME SLAVE TO LABOR ALL MY LIFE.

I RESPECTFULLY THANK YOU FOR TAKING THE TIME TO GO OVER MY REQUEST AND HOPE THAT YOU CAN SEE IT IN YOUR HEARTS AND SOULS TO GIVE A YOUNG MAN WITH AN UNFORTUNATE INHERITIED DISORDER ANOTHER CHANCE TO CORRECT HIS MISHAPS AND BECOME AS SO MANY ARE (ACTORS, FAMOUS INVENTORS AND OTHER FAMOUS FOLKS WITH THE SAME DISORDER) TO BECOME A SUCCESS AND NOT A FAILURE.
I THANK YOU AGAIN AND GOD’S SPEED.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s statement
Letter from Licensed Professional Counselor, dated May 12, 2000
Seven pages from Applicant’s medical record
Letter from Texas Panhandle Mental Health Authority, dated November 19, 1999
Certificate from Texas Drug Offender Education Program, dated October 21, 1996
One page from Applicant’s service record
Applicant’s High School transcript
Letter to Congressman from Applicant, dated April 7, 2002
Letter from Congress of the United State to Applicant, dated August 29, 2002
Letter from Congress of the United State to Applicant, dated December 18, 2002
Letter to Congressman, dated May 24, 2002
Progress note, dated March 11, 2002 (2 pages)
Letter from Casework III, dated June 19, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900313 - 900716  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900717               Date of Discharge: 940525

 Length of Service (years, months, days):

         Active: 03 10 09
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rate: SM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.23 (7)    Behavior: 3.14 (7)                OTA: 3.34

 Military Decorations: None

 Unit/Campaign/Service Awards: JMUA (2), SASM (2), AFEM, BER, SSDR

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900718:  Applicant briefed on Navy's policy of drug and alcohol abuse.
900718:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement consisting of the following: Dec89 Speeding/FTA, Sacramento, CA, Dec89 Speeding/FTA Placer County, CA, Dec89 Speeding/FTA, Sacramento, CA, Jan90 Speeding/FTA, Sacramento, CA, Feb90 Speeding/FTA, Sacramento, CA, Fine $1400.00. Paid $700.00. You are hereby directed to resolve the outstanding debts to society as listed above within 4 months. Failure to resolve the above listed involvement with civil authorities may result in disciplinary action being taken IAW the Uniform Code of Military Justice.

 901106:  Applicant briefed on Navy's policy of drug and alcohol abuse.
911218:  NJP for violation of UCMJ, Article 92: Willful disobedience of a Petty Officer on 911211.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
920702:  NJP for violation of UCMJ, Article 134: Disorderly conduct and drunkenness on 920611.
         Award: Restriction and extra duty for 45 days, reduction to SMSN. Reduction suspended for 6 months. No indication of appeal in the record.
930122:  Retention Warning from USS WILLIAMETTE (AO 180): Advised of deficiency (Failure to properly inform chain of command resulting in unauthorized absence from appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940330:  NJP for violation of UCMJ, Article 89: Disrespect to superior commissioned officer, violation of UCMJ, Article 113: Sleeping on post.
         Award: Restriction and extra duty for 30 days, reduction to SMSN. No indication of appeal in the record.
940419:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 940412, tested positive for THC.

940421:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession of controlled substance.
         Award: Forfeiture of $466.65 per month for 2 months, restriction and extra duty for 45 days, reduction to SMSA. No indication of appeal in the record.
940421:  USS WILLIAMETTE notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the Uniform Code of Military Justice in your current enlistment, and misconduct due to drug abuse as evidenced by your wrongful use of marijuana, a controlled substance.
940421:  Applicant advised of rights and having elected not to consult 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.
940504:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

940506:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

940516:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940525 under other than honorable conditions for misconduct due to a pattern of misconduct (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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. The Applicant’s service record was marred by the award of four nonjudicial punishments, one for drug abuse. There is no evidence of impropriety or inequity in the Applicant’s discharge. Mandatory processing for separation is required for sailors who abuse illegal drugs which generally results in characterization of service under other than honorable conditions. The Applicant was properly dual processed for discharge due to pattern of misconduct and drug abuse. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2. 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. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issue 3. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The following is provided for the edification of the applicant. 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, and certification of non-involvement with civil authorities.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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