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NAVY | DRB | 2004_Navy | ND04-00528
Original file (ND04-00528.rtf) Auto-classification: Denied


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


ex-HM3, USN
Docket No. ND04-00528

Applicant’s Request
The application for discharge review was received on 20040211. 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.

Decision

A documentary review was conducted in Washington, D.C. on 20041008. 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 considered by the NDRB. The Board’s vote was 4 to 1 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. “The discharge I received from the U.S. Navy was unjustifiable for the offense I committed. I was enlisted in the U.S. Navy for 5 years and 4 months and in addition to my first enlistment I re-enlisted for 3 more years. Throughout my term of service in the Navy I had an impeccable record until the incident causing my discharge. My service record will show that I received numerous awards and commendations for my service in the Navy as well as for the surrounding communities, and no negative remarks or counsel at all ( Please see attached Respondent Exhibits and Enlisted Service Record ).
The incident in question involved the possession of steroids across the Mexican border into the U.S. The offense was not intentional as I thought I was purchasing a diet supplement. as well as I did not know the illegality of the offense until brought to my attention by the authorities. I explained this to the authorities and they agreed in not pressing charges against me. The sailor that was involved in this matter also swears by this. He was retained by the military and given the choice to his service or be discharged honorable from the military with full benefits ( Please see Enclosures 1 and 2 ).

 I did however, take full responsibility for my actions and understood that I would face punishment. When brought before the NJP board, I was found guilty due to conduct unbecoming a petty officer and had my rank reduced from an E-5 to an E-4, received loss of pay. and an Other than Honorable Discharge was recommended. I was then brought before the Administrative Board to appeal the recommendation. In a two-thirds majority of the Board members, it was recommended that the Other than Honorable Discharge be suspended and that my services be retained by the Navy ( Please see the attached Record of Hearing and enclosure 3 ). The final decision made by BUPERS was that the suspension of my discharge be denied.

I understand that the severity of my punishment was due to the fact that it involved drugs and the Navy has a zero tolerance policy in this matter. I did not previously use nor was it my intention to use illegal substances of any kind. I took a urinalysis immediately following the offense and the results were negative ( Please see enclosure 4 ).
I have not let this situation ruin my life as a civilian outside of the military. I have, however, continued to better myself. I have maintained the same job at Valor Security for 2 years ( Please see Enclosure 5 ). I am a married man for 8 years with a 6 year old son. I recently completed the Florida Law Enforcement Academy, which was 6 months long. I attended school from 0700 to 1730 and worked from 1800 to 0200 in order to achieve my goals. And on 15 Nov 03 was certified by the state of Florida ( Please see Enclosure 6 ), and I am in the application process with law enforcement agencies in the Northeast Florida region. I have enclosed numerous character references that display my dedication to honor and integrity in my civilian life as well ( Please see Enclosure 7 ).

 Although I have come far in my journey, my discharge from the Navy is now the final obstacle to overcome in obtaining my dreams. I respectfully request that my Other than Honorable Discharge be upgraded to an Honorable Discharge. Thank you!
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Copy of DD Form 214 of G_ H_
 Service Record entries (21 pages)
 Statement of character from MSgt M_ E. K_ (3 pages)
Statement of character from HMCM R_ S_ (2 pages)
 Statement of character from LT E. M. S_ (3 pages)
Statement of character from HM1 C_ E. G_ (3 pages)
Statement of character from CDR H_ W_ (3 pages)
 Statement from G_ J_
 Record of administrative board hearing (10 pages)
Request for suspension of discharge (2 pages)
 Statement to Commanding General, 1 st Marine Division from CDR M. W. T_
Statement to Commanding General, 1 st Marine Division from HMC T_ O. R_
 Statement of character from CDR E. C. McDonald (3 pages)
Consent to give urinalysis
 Drug testing report (2 pages)
 Employment reference from A_ G_
Employment reference from D_ C_
 Florida Department of Law Enforcement test results
 Certificate of Completion, Florida Community College at Jacksonville
Certificate of Completion, Federal Law Enforcement Training Center
 Character reference from T_ L. S_
 Character reference from J. M. S_
 Character reference from CDR M_ G_
 Character reference from W_ B_
Character reference from A. D. F_
 Character reference from HTC B_ G. T_
 Character reference from R. A. C_
Character reference from T_ P. W_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     951122 - 960402  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 960403               Date of Discharge: 010803

 Length of Service (years, months, days):

         Active: 05 04 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)
Education Level: 12                        AFQT: 41

 Highest Rate: HM2
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)    Behavior: 3.00 (3)                OTA: 3.73
Military Decorations: NAM, FMF Ribbon

 Unit/Campaign/Service Awards: GCM, JMUC, NUC, AFEM, HSM, SSDR (2), CGMUC, VSR, Expert Rifle Medal, Expert Pistol Medal, Letter of Commendation (4)
Days of Unauthorized Absence: None

 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 :

010220:  Applicant arrested at San Ysidro by USCS agents for attempting to import anabolic steroids.
010301:  NJP for violation of UCMJ, Article 112a: wrongful possession of anabolic steroids.
Award: Forfeiture of $750 per month for 1 month, reduction to E-4. No indication of appeal in the record.
010307:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse.
010319:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
010608:  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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. By a vote of 2 to 1, the Board recommended that the discharge be suspended for a period of 12 months.

010522:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010724:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010803 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: Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. There is credible evidence in the record that the Applicant possessed anabolic steroids, an illegal drug. Mandatory processing for separation is required for sailors who commit drug related offenses. Possession of illegal drugs is considered a drug related offense under the UCMJ and applicable MILPERSMAN regulations. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant contends that his possession of the anabolic steroids was done without knowledge of the contraband nature of the substance. Despite his contentions, an administrative discharge board found unanimously that the Applicant had committed misconduct and had knowledge of the contraband nature of the steroids. Nothing in the record suggest this finding was erroneous and the Applicant’s contentions to the contrary do not rebut the government’s presumption of regularity in this case. Furthermore, 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.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. 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. A single discreditable incident with military or civilian authorities may form the basis for determining the character of a member’s service. The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Articles 112a of the UCMJ, wrongful possession of anabolic steroids. 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 is not warranted.

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, credible evidence of a substance free lifestyle, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, 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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