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NAVY | DRB | 2004_Navy | ND04-00609
Original file (ND04-00609.rtf) Auto-classification: Denied


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

ex-SMSR, USN
Docket No. ND04-00609

Applicant’s Request
The application for discharge review was received on 20040303. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list a representaataive on the DD Form 293. Subsequent to the application, the Applicant obtained the Veterans of Foreign Wars as the representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001. 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, 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. This was the first DUI received and documented in which I received counseling in
Point Loma mil. facility/out patient treatment.
2. The Drugs found with in my automobile were not mine and an person who used my
car later confessed to the drugs.
3. When counseled by JAG Attorney told me as long as the drugs were in my car there
was no point of fighting case.
4. If possible I ask not only for a upgrade of discharge but a good enough rating to
rejoin the armed forces.
5. The was the one isolated incident in my 31 months in the service.
6. I never in the 31 months of service showed positive on a U.A.”

 Additional issues submitted by Applicant’s Veterans of Foreign Wars:

7. “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 09-09-04 and the following comments are hereby submitted.

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

 We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for an upgraded discharge. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (member 4)
School Transcript from Washburn University, Summer 2003, dtd 2/23/04
Letter from employer, Washburn University, verifying proof of employment, dated February 23, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990528 – 990625          ELS
         Inactive: USNR (DEP)     991209 – 000118          COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 000119               Date of Discharge: 020823

 Length of Service (years, months, days):

         Active: 02 07 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 11                        AFQT: 44

 Highest Rate: SMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.10 (1)             Behavior: 1.00 (1)                OTA: 1.17

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

990525:  Acknowledged understanding of Navy Alcohol/Drug Policy.

 020214:  Arrested in San Diego County for driving under the influence of alcohol. Court hearing pending (Extracted from USSNIMITZ LTR of 5 Aug 02).
020309:  Arrested in San Diego County for driving under the influence of alcohol. Court hearing pending (Extracted from USSNIMITZ LTR of 5 Aug 02).

020515:  Arrested onboard NAS North Island, San Diego, CA for DUI. During the arrest, responding officers found a plastic bag which, after undergoing forensic testing, proved to be over 50 grams of marijuana. That marijuana was separated into smaller bags for apparent distribution. (Extracted from USSNIMITZ LTR of 5 Aug 02).   

020528:  Report of Analysis of (4) nested plastic baggies which was found in the vehicle V_ B_ (Applicant) was driving.
         Examination Results: Marijuana was identified

020628:  Medical evaluation for Alcohol abuse found the Applicant met the DSM-IV criteria for alcohol abuse due to: 1) continued use despite legal problems, 3 DUI’s in a four-month period.
         Recommendation: Meet with the Command DAPA on a weekly basis to review progress on assigned aftercare plan.
         Identify an AA home group within 30 days of completing treatment.
         Obtain an appropriate permanent sponsor within 30 days of completing treatment.
         Attend 2 AA meeting a week for period of 52 weeks.
         Attends 52 aftercare groups. The Command DAPA should schedule these services with the appropriate facility providing such services.

020722:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 111:
         Specification: In that V_ J_ B_ (Applicant), on active duty, did, at San Diego, California, on or about 020514, at or near the main gate, Naval Air Station North Island physically controll a vehicle, to wit: a passenger car, while drunk.
         Charge II: violation for the UCMJ, Article 112a:
         Specification 1: In that V_ B_ (Applicant), while on duty, did, at San Diego, California, on or about 020514, wrongfully possess 50.98 grams, more or less, of marijuana, a controlled substance, with the intent to distribute the said controlled substance.
         Specification 2: In that V_ B_ (Applicant), on active duty, did, at San Diego, California, on or about 020514, wrongfully introduce 50.98 grams, more or less, of marijuana, a controlled substance, onto an installation used by the armed forces or under control of the armed forces, to wit: Naval Air Station North Island with the intent to distribute the said controlled substance.
         Finding: to Charge I and specification thereunder guilty. To Charge II and specification 1 and 2 thereunder guilty (except for the words “with the intent to distribute the said controlled substance”).
         Sentence: Reduced to E-1, restriction for 60 days.
         CA 020725: Sentence approved and ordered execution.
020726:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.
020726:  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.
020805:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense. Commanding Officer’s comments: “SMSA B_ (Applicant) was arrested for DUI by local law enforcement authorities on 020214 and 020309. While pending trial for these charges, he was arrested for DUI on 020515 at Naval Air Station North Island, San Diego, California. During that arrest, responding officers found a plastic bag which, after undergoing forensic testing, proved to be over 50 grams of marijuana. That marijuana was separated into smaller bags for apparent distribution. At a trial by summary court-martial held 020722, SMSA B_ (Applicant) was found guilty of drunken operation of a vehicle, and wrongful possession and introduction of a controlled substance. SMSA B_ (Applicant) clearly has no potential for further useful service, nor any regard for the Navy’s rules or regulations. I recommend he be separated Under Other Than Honorable Conditions.”

020808:  Commander, Cruiser-Destroyer Group FIVE authorize 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 20020823 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 Applicant contends that “this was the first D.U.I. received and documented in which I received counseling in Point Loma Mil. Facility/outpatient treatment. ” While he may feel that his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issues 2,5,6. The Applicant contends that he served the United States well and he is entitled to an upgrade. 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. The Applicant’s service was marred by a summary court-martial for violations of Articles 111 (1 Spec) and Article 112a (2 Specs) of the UCMJ. 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.

Issue 3. The Applicant contends that “when counseled by JAG attorney told me as long as the drugs were in my car there was no point of fighting”. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The record, contains no evidence of any wrongdoing by the Applicant’s military attorney or anyone else for that matter in the discharge processing. There is no evidence to support the Applicant’s claim that the drugs found in his car belonged to another individual. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

Issue 4. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

Issue 7. The applicant’s representative (VFW) “supports the Applicant’s contentions that his discharge should be upgraded.” The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided one college transcript for one semester and one letter of verification of employment as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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), re-issued October 2002, effective 22 Aug 2002 until Present, 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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