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NAVY | DRB | 2004_Navy | ND04-00114
Original file (ND04-00114.rtf) Auto-classification: Denied


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


ex-AMHAN, USNR
Docket No. ND04-00114

Applicant’s Request
The application for discharge review was received on 20031022. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington
D. C. area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:
“Issue #1: Not sure of type of discharge I received. (See attached statement)
Issue #2: Reason for A.W.O.L. (See attached statement)

 Issue #3: Original discharge. (See attached statement)
Issue #4: Victim of personal vendetta. Urinalysis - -(See attached statement)
Issue #5: "My kind," vendetta. Urinalysis (See attached statement)
Issue #6: Discharge upgrade due to overall performance.

 I am writing out my issues without the benefit of receiving my records from
 St. Louis. I requested these records six months ago and have received nothing.
So I must do all from a somewhat forgetful memory.”
7. “I am not sure of the exact type of discharge I received in 1989. I think it was O.T.H., because I had been A.W.O.L.”

 8. “Reason for A.W.O.L.: In almost ten years of service. I was never A.W.O.L.. I was forced into this situation this time, because the captain of my base, repeatedly refused my request for terminal leave while waiting for my general under honorable conditions discharge. He kept me confined to the barracks, while my family (wife and four children) who were living in navy housing at another base, six miles away, were receiving eviction notices because I was being discharged. I felt I had no choice but to flee the base, rent a truck and move my family to the worst part of the city, with no severance pay, no transition training and no drug rehabilitation. My family and I went through the worst culture shock, which led to many other things, including my contracting two life threatening diseases.”

9. “Original discharge: I was supposed to be getting a general under honorable conditions discharge, because I believe, my overall evaluation for nine years of service was a 3.8. The administration board of 9 officers all agreed and so did the Secretary of the Navy. But my captain was angry because he knew that my being a (T.A.R.) reservist, I would receive a severance pay, so he did everything he could to force me to go A. W.O.L., working me 14 hours a day, denying my terminal leave and having notices sent to my wife that she would have to move out. I received two honorable discharges before this one, with one good conduct medal and one for meritorious action.”

10. “No one else who received one bad urinalysis got the treatment I did. Yes, I had problems with drinking in the previous years but drinking was promoted heavily among my superiors and peers alike. I did not drink for five years prior to this incident. I believe it was a vendetta against me by that captain, because I told him I knew how many times he had been stopped or picked up for drunk driving, and kept off the records by the Hors ham police. I knew someone who worked there and for this reason he hated me and told me “we don’t want your kind in this Navy.”

 11. “My Kind? I am not a Vietnam vet, Gulf War vet or Operation Freedom vet, yet
 I am a vet of the Cold War, and I risked my life just as many times as these heroes.
 I repaired fuel cells on P-3 aircraft, and risked my life many times climbing down in
 there to work. One time in tank #5 (I was the only one who could turn around
inside), I lost my mask. I got stuck in the corner and my safety man P.O. Beaty,
 was off shooting the shit with someone and could not hear my cries for help.
 I passed out, and only through divine grace was I able to reach my mask and climb out. I almost died. I worked every day on dangerous hydraulic systems and engines, let alone fly through bird strikes. So why don’t I get the same recognition as war vets? I gave almost ten years of my life to this, and am still going through culture shock. I still live by all the good things the navy taught me, i.e.., chain of command personal responsibility is good work habits, courtesy to foreigners, and so forth.”
12. “With this said, I feel I deserve an honorable discharge or at the very least, the general discharge that was first approved. If someone today gets a hot urine, they get counseling, etc.. I got the boot. I feel I deserve my honorable discharge for almost ten years of good hard work, and all the benefits that go along with that, including the severance pay scale that was in effect far Naval Reserves T.A.R. personnel at that time. I still love the Navy, and just wish they would beat Army mare often.
Yours for America Forever,

P.S. I wish I could have provided all dates and times, but Saint Louis is not sending My records.

While in the Navy, I broke two vertebra in my neck. I never made a claim to the Navy about it because I love the Navy. It was the father I never knew. Now I have HIV, HCV, ITB, and degenerative disk disease that developed the first month after my discharge when I should have been at a navy-offered rehab. I still do not hate the Navy because no matter if I am sweeping or mopping a floor, or timing servo valves for H-3 helicopters or doing eddy current inspections on CH-53 rotor heads, I always do the best job at that place and time with the pride the Navy taught me.”





Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Two certificates of achievement
 Three certificates of course completion
 Prescriptive Treatment Program Evaluation
Alcohol and other drug treatment correctional plan evaluation
 Offense related correctional plan evaluation
 Secondary school diploma and supporting letter
Three letters from Peru
 Prison pass notification slip
 Letter of recommendation from J_ G_
Letter of recommendation from A_ B_
 Letter of recommendation from D_ D_
 Letter of recommendation from T_ R_
Letter of recommendation from A_
 Letter of recommendation from S. K_ S_
 Résumé
 Inmate information report




PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
          Active: USNR              790529 – 830811  HON
 830812 – 870815  HON
Period of Service Under Review :
Date of Enlistment: 870816               Date of Discharge: 890130

 Length of Service (years, months, days):
         Active: 01 05 15 (Does not exclude lost time)
          Inactive: None
Age at Entry: 26                          Years Contracted: 4

Education Level: 12                        AFQT: 48
Highest Rate: AMH2

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                 Behavior: NMF             OTA : NMF

 Military Decorations: None
Unit/Campaign/Service Awards: GCM

 Days of Unauthorized Absence: 52
*No Marks Found in the service record for the period under review
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

871217:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
         Award: Restriction and extra duty for 20 days, reduction to AMH3. No indication of appeal in the record.
880115:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to minor disciplinary infractions.
880115:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
880303:  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 not due to minor disciplinary infractions, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

880330:  Commanding Officer recommended discharge under other than honorable conditions for drug abuse.
880424:  To UA.
880505:  CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to illegal drug use.
880603:  CNMPC directed that Applicant be reprocessed for administrative separation upon return from UA.
880615:  From UA, to pre-trial confinement.
880729:  Special Court-Martial.
 Charge: Violation of UCMJ, Article 86: UA from 0730, 880424 to 1129, 880615.
 Finding: Guilty.
Sentence: Confinement for 55 days, forfeiture of $100.00 for 4 months, reduction to E-3.
880806:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your prolonged unauthorized absence and by reason of misconduct due to illegal drug use as evidenced by a positive urinalysis for cocaine from a sample collected on 871105.
880806:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
881101:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and due to drug abuse.

890118:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890130 under other than honorable conditions for misconduct due to commission of a serious offense (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).
Issues 1-12. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for illegal drug use and one special court-martial for a period of unauthorized absence over 30 days. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. The evidence of record and statements provided by the Applicant 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.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.















Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 6, effective
11 Jan 89 until 24 May 89, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
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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