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NAVY | DRB | 2004_Navy | ND04-00417
Original file (ND04-00417.rtf) Auto-classification: Denied


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

ex-GSMFN, USN
Docket No. ND04-00417

Applicant’s Request
The application for discharge review was received on 20040114. 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 listed Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

 1. “DEAR DRB: THE FOLLOWING ISSUES ARE THE REASONS I BELIEVE MY
DISCHARGE SHOULD BE UPGRADED TO HONORABLE. IF YOU DISAGREE.
PLEASE EXPLAIN IN DETAIL WHY YOU DISAGREE. THE PRESUMPTION OF
REGULARITY THAT MIGHT NORMALLY PERMIT YOU TO ASSUME TI THAT
THE SERVICE ACTED CORRECTLY IN CHARACTERIZING MY SERVICE AS
LESS THAN HONORABLE DOES NOT APPLY TO MY CASE BECAUSE OF THE
EVIDENCE I AM SUBMITTING.

•         MY AVERAGE CONDUCT AND EFFICIENCY RATING/BEHAVIOR AND PROFICIENCY MARKS WEREWAY ABOVE AVERAGE. MY ADVANCEMENT WAS RAPIDLY SUPERIOR TO OTHERS IN MY RATE. DURING BOTH “A” AND “C” SCHOOLS I WAS IN THE CATEGORY OF HONOR GRAD.
•         I RECEIVED AWARDS AND DECORATIONS. GOOD CONDUCT AND MERITORIOUS UNIT ACCOMIDATION.
•         I RECEIVED LETTERS OF RECOMMENDATION.
•         MY RECORD OF PROMOTIONS SHOWED I WAS ALL WAYS A GOOD SERVICE MEMBER.
•         THERE WERE OTHER ACTS OF MERIT.
•         I HAD A HONORABLE DISCHARGE.
•         I HAVE BEEN A GOOD CITIZEN SINCE THEN. MAITAINED MY PRESENT JOB FOR THE LAST FOURTEEN YEARS. CONSISTENT VOTER ON ALL LEVELS OF ELECTIONS. OBTAINED AND HOLD IN GOOD STANDING A REAL ESTATE BROKERS LICENSE.
•         MY RECORD OF THE CAPTAINS MAST CONVICTION INDICATES ONLY THE ONE ISOLATED OFFENSE, BASED UPON AN ISOLATED URANALISYS FAILURE WHEN IN MY TOTAL NAVY SERVICE OVERWHELMINGLY MORE URANALISYS WERE CLEAN.
 DUE TO IMMATURITY, MARITAL, CHILD CARE AND FINANCIAL PROBLEMS ATE AWAY AT MY INNER SELF TO THE POINT I WOULD EXPLODE OR ACT STUPIDLY, AS I HAD. FOR MONTHS PRIOR TO THE INCIDENT MY MARRIGE HAD BEEN CRAZY. ONE DAUGHTER, REBELIOUS, STAYING OUT ALL NIGHT AND ALLWAYS WANTING TO FIGHT WITH ME. THE OTHER DAUGHTER ON THE OTHER HAND HAD A DISABILITY WHICH REQUIRED MONTHLY BLOOD TRANSFUSIONS AND OFTEN SHE WENT IN TO FITS OF PAIN NO-ONE BUT A DOCTOR COULD REMIDY. THE BILLS WHERE EATING ME ALIVE SO MY WIFE WENT TO WORK WHICH ADDED TO MY NEEDING TO HELP MORE AROUND THE HOUSE. I HAD JUST COME TO A POINT WHERE I WAS GONNA BLOW. I SECRETELY STARTED DRINKING AND ONE NIGHT RAN INTO A COUPLE OF GIRLS. I WENT OFF WITH THEM AND SMOKED SOME OF THERE CIGARETTES, NOT KNOWING THEY WERE LOADED. THE NEXT MORNING WE HAD AN URANALISYS AND IT WENT POSITIVE. ON TOP OF IT ALL THE CAPTAIN MADE IT A POINT TO LET EVERYONE KNOW HE WAS USING ME AS AN EXAMPLE. I DON’T BLAME HIM. SEE, MY FAMILY HAS OFFERED UP MANY PATRIOTS FOR OUR COUNTRY. FATHER FLEW WITH DULITTLE IN BOMBING JAPAN FIRST TIME. UNCLE AT EWO JIMA. ONE WAS PROVOMARSHAL FOR S.E. USA DURING WW11 AND SO FORTH ALL THE WAY BACK To THE US REVOLUTION. THIS SHAME IS WHY NO ATTEMPT TO UPGRADE HAS BEEN MADE TILL NOW.
I’M ALSO DIVORCED, AND THE SICK CHILD DIED TRAGEDLY. ALL ELES ASIDE, THE BEHAVIOR BEHIND THE LEVEL OF DISCHARGE WAS AN ISOLATED EVENT IN MY LIFE AS THE REST OF MY RECORD REFLECTS.
ANOTHER REASON WHICH ADDED TO MY LACKADAISICAL DRUNKEN ENCOUNTER WITH THOSE LADIES AND THEIR LOADED CIGARETTES WA S THAT I HAD ENTERED THE NAVY WITH AN EDUCATION FROM THE UNIVERSITY OF FLORIDA AND WAS INSTRUCTED BY MANY NOT TO ENTER THE NAVY AS AN ENLISTED, BUT THE DETAILER SAID IF I ENLISTED I COULD EASILY ENTER LDO PROGRAM, BUT IT WAS NOT TRUE. THIS ALSO ADDED TO MY MY NEED TO BLOW UP. NO ONE SEEMED TO CARE ONLY NEED MORE OUT OF ME, IF YOU KNOW WHAT I MEAN.
DUE TO THESE EXTINGUISHING CIRCUMSTANCES I REQUEST AN UPGRADE TO HONORABLE AS MY RECORD REFLECTS.
SINCERELY,

D_ H_ R_ ( Applicant )”
Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 2. “ Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on April 29, 2004 and the following comments are hereby submitted

We concur with the applicant’s contentions that his discharge be upgraded.

We refer this case to the Board for their careful consideration and request the Applicant's discharge be reviewed for up grade to General Discharge. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 dtd 890323

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     840914 - 850407  COG
         Active: USN                        850408 - 890323  HON

 Period of Service Under Review :
Date of Enlistment: 890324               Date of Discharge: 900330

 Length of Service (years, months, days):

         Active: 01 10 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

Education Level: 12                        AFQT: 77

 Highest Rate: GSM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.00 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

900208:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance. Award: Forfeiture of ½ pay per month for 2 month(s), restriction and extra duty for 45 days, reduction to GSM3. No indication of appeal in the record.

900213:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

900221:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by use of cocain.
900221:  Applicant advised of 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 and to make a statement.

900314:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900316:  DAAR: Abuse, cocaine, ashore off-duty, identification by unit sweep. Evaluation made by DAPA and medical officer as not dependant.

900328:  CNMPC 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 19900330 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. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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.

The Applicant contends his disciplinary problems were the result of stress caused by family situation. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. 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. 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 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

Issue 2. 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. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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 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. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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