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NAVY | DRB | 2004_Navy | ND04-00590
Original file (ND04-00590.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND04-00590

Applicant’s Request
The application for discharge review was received on 20040224. 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. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050602. 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 on the application:

1. “Medical purposes.”

 Additional issues submitted by Applicant’s representative (Disabled American Veterans):

2. “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 his request for a discharge upgrade of his current Other Than Honorable Discharge to that of Honorable. As Counsel we ask for consideration of an upgrade to that of General, Under Honorable Conditions.

The FSM served on active service from October 9, 1991 to July 14, 1993 at which time he was discharged due to Misconduct – Drug Abuse - Use.

The FSM contends the current discharge is improper because it precludes him from medical treatment by the Department of Veterans Affairs.

On review of the documentation provided the record reflects a 4.0 sailor, who was meritoriously promoted to the rank of E-2 after completion of training at the great Lakes Naval Station, Training Command due to his performance. Also for the same he received an Outstanding Achievement Award. Even though found not to be dependent on alcohol or drugs the Applicant was still processed for Administration Separation. Regardless that he had committed one mistake, and had the potential to be a valuable asset to the ship’s crew.

The lack of tolerance would be understood if this were a second offense, or if found to be dependent on drugs and alcohol. But to remove a better than average sailor from service based on one mistake, goes against the good order of the Military Services. If the same principles were applied by all Commands there would not be a military. That’s why there are rehabilitative services, counseling, and non-judical punishment. So that better than average sailors can be re-trained with the services and retained for further service.

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 D, Sect. 407, part 3.

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 5420.174D.

Under the premises of equitable relief, we believe the Board can change the current discharge to that of General, Under Honorable Conditions as the present assignment of the Other Than Honorable discharge is to harsh for the singular offense and the nature of service presented by the applicant. Additionally there are several character statements that attest to the high character and moral levels of the applicant to be reviewed and considered, that also do not show justification for the present style of discharge.

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.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (4)
Ltr to Applicant from NDRB, dtd April 18, 2005
Ltr frm Applicant, dtd April 28, 2005
Ltr to Applicant from Department of Veterans Affair, dtd April 8, 1994
Ltr frm Director of Veterans Service, undtd
Ltr to Applicant from Mbr of Congress, dtd June 3, 2004
Ltr frm Director, NCPB to Mbr, US House of Representatives, dtd May 21, 2004
Standard Form 180
Ltr frm Applicant, dtd April 4, 2005
Ltr frm Applicant, undtd
Fourteen pages from Applicant’s service record
Newspaper article (3)
Character reference frm the Mayor, City of Lawrence, dtd February 24, 2004 (3)
Character reference frm Applicant’s pastor, dtd March 20, 2004 (3)
Character reference frm Councilor at Large, City of Lawrence, dtd March 31, 2004 (3)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     910528 - 951008  COG

 Period of Service Under Review :
Date of Enlistment: 911009               Date of Discharge: 930714

 Length of Service (years, months, days):

         Active: 01 09 06
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 38

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)             Behavior: 2.50 (2)                OTA: 3.00*

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*Marks partially extracted from documents provided by Applicant

 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 :

911023:  Retention Warning: Advised of deficiency (Defective enlistment and induction into naval service as evidenced by your failure to disclose your preservice civil involvement/drug abuse: Assault and Battery 2/91, Boston; dismissed and Disorderly Conduct 5/91, Hampton Beach; Paid $60.00 fine.) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930528:  NJP for violation of UCMJ, Article 112a: Wrongful use of methamphetamine on 930505.
         Award: Forfeiture of $456 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
930528:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. Applicant notified that the characterization of service may be Under Other Than Honorable Conditions.
930528:  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. Applicant did not object to the separation.
930607:  Medical evaluation for drug abuse found the Applicant not dependent on alcohol or drugs.

930623:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930701:  BUPERS 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 19930714 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. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Issue 2. The Applicant contends through his representative that his discharge was based on one isolated incident in and that he “still had the potential to be a valuable asset to the ship’s crew” and that he was “a better than average sailor.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by a retention warning for defective enlistment and award of nonjudicial punishment (NJP) for illegal drug use. Separation under these conditions generally results in characterization of service under other than honorable conditions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge 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 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. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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