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NAVY | DRB | 2004_Navy | ND04-00684
Original file (ND04-00684.rtf) Auto-classification: Denied


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

ex-FCSA, USN
Docket No. ND04-00684

Applicant’s Request
The application for discharge review was received on 20040323. The Applicant requests that his characterization of service be changed to honorable and the reason for his discharge be changed to “Non-pattern of misconduct”. The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area. The Applicant listed civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060227. After careful consideration of the Applicant’s testimony, a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service or reason for discharge were discovered. The Board’s vote was unanimous that the characterization of the discharge and the reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.





SPN CODE HKA

THIS IS THE CORRECT SHELL FOR Misconduct - Pattern of misconduct. 890111 - 890524 ONLY.

THE FINDING FOR MISCONDUCT, (3630600) EFFECTIVE 890111 - 890524 ONLY. THE SPN CODE IS EFFECTIVE 860911 - 930627.
 A general discharge is written UNDER HONORABLE CONDITIONS (GENERAL).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues submitted by Applicant’s civilian counsel :
1. “ Issues for Consideration of the Review Board
Mr. A_'s ( Applicant ) naval service began in 1985 and lasted until his separation date on March 27, 1989 at which time he was Discharged Under Other Than Honorable Conditions for what was described as "misconduct - pattern of misconduct." On February 15, 1990. Mr. A_ ( Applicant ) applied to the Naval Discharge Review Board (NDRB) for a documentary discharge review. On July 5 1990, the NDRB issued its final decision affirming the discharge as proper as issued and denying Mr. A_'s ( Applicant 's) request to change his discharge status.

As set forth in Attachment #1 to the DD293, Mr. A_ ( Applicant ) raises the following issues for consideration in favor of an upgrade of or change in to his discharge status:

A. Reconsideration of the NDRB decision of July 5, 1990, pursuant to DoD Directive1332.28.E.2.8.2. The NDRB decision was made without a hearing, which is requested before this review board. The Directive expressly permits the reconsideration of a prior decision in such circumstances.

B. Reconsideration of the NDRB decision of July 5, 1990, pursuant to DoD Directive 1332.28.E.2.8.5. Mr. A_ ( Applicant ) did not have counsel or a representative during the NDRB decision process. Mr. A_ ( Applicant ) will have counsel represent him before this review board. The Directive expressly permits the reconsideration of a prior decision in such circumstances.

C. Reconsideration of the narrative reason for the 1989 Discharge for "misconduct - pattern of misconduct” due to the disparate nature of the instances of misconduct. Mr. A_ ( Applicant ) believes it was prejudicial, unfair, and biased to assess three disparate instances of misconduct as a pattern.

D. Reconsideration 1989 Discharge determination that there was a "pattern of misconduct” due to the fact that the Uniform Code of Military Justice requires a showing of three or more punishments within the current enlistment Mr. A_ ( Applicant ) asserts that this standard was not properly or fairly relied upon in his case because of: i) the term of his then current enlistment: ii) the application of this standard in the other branches, and iii) the assessment of punishment by the Navy without full and adequate disclosure (including providing legal counsel) of the ramifications of a punishment.

E. Reconsideration of the October 21, 1988 Article 112a violation for the wrongful use of a controlled substance and the subsequent determination on February 21, 1989 that he was not medically dependent, that he was not in need of medical treatment and counsel, and the use of statements as to his present/future drug use.

F. Consideration of the impact of Mr. A_'s ( Applicant 's) unsuccessful marriage on his service, pursuant to DoD Directive 13328.E4.3.3.2.2, which permits the consideration of Mr. A_ ( Applicant ) capacity to serve due to family and personal problems. Because the prior review was done without hearing and without the aid of counsel, the applicant was denied the opportunity to show how this situation impacted his service.

G. Consideration of the impact of Mr. A_'s ( Applicant 's)’ drug problem on his service, pursuant to DoD Directive l3328.E4.3.3.2.2, which permits the consideration of Mr. A_'s ( Applicant 's) capacity to serve due to family and personal problems. Because the prior review was done without hearing and without the aid of counsel, the applicant was denied the opportunity to show how this fact impacted his service.

H. Consideration of Mr. A_'s ( Applicant 's) quality of Service, pursuant to DoD Directive 1332.28.E4.3.3.1.10, which permits the consideration of the “outstanding postservice conduct” in order to provide a more thorough understanding of Mr. A_'s ( Applicant 's) performance during his service.

 F. Reconsideration of the 1989 Discharge being characterized as Other than Honorable Conduct.
I. Consideration of the equity of the character of the discharge in light of the items raised in A-F, above.

 Based on these issues, Mr. A_ ( Applicant ) believes there is sufficient basis to change the narrative reason for the separation and/or change the characterization of the discharge to honorable. ”

 Applicant’s issues submitted at the time of the personal appearance hearing:

1. Propriety: Consideration of the 4 NJP’s as a Pattern of Misconduct denied Mr. A_’s (Applicant) his right to due process.

2. Equity: Drug abuse and family situation (marriage) impacted the quality of his service as well as his capacity to serve.

3. Propriety & Equity: At time of 1989 discharge, Mr. A_ (Applicant) personal situation (drug use & marital problem) left him impaired and without sufficient capacity to waive his right to counsel or to hearing.





 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

 Photocopy of Texas Board of Professional Engineers license.
Photocopy of Marriage certificate
7 pages submitted by Applicant’s attorney

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     841220 - 850210  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 850211               Date of Discharge: 890327

 Length of Service (years, months, days):

         Active: 04 01 17         (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                 Years Contracted: 4 (24 and 15 month extensions)

 Education Level: 13                        AFQT: 93

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.15 (8)             Behavior: 3.23 (8)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: Sea Service Deployment Ribbon, Navy Battle Efficiency “E” Ribbon, U. S. Coast Guard M. U. C., USCG Special Ops Support Ribbon

 Days of Unauthorized Absence: 34


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

841218:  Applicant briefed on U. S. Navy’s policy on drug and alcohol abuse.

850215:  Applicant briefed on U. S. Navy’s policy on drug and alcohol abuse.

850305:  Applicant briefed on U. S. Navy’s policy on drug and alcohol abuse.

 850305:  Applicant extended enlistment 24 months for training and accelerated advancement to E-4.

851211:  Applicant promoted to ET3.
860304:  Applicant report for duty as a student of Navy Nuclear Power School.
860514:  NJP for violation of UCMJ, Article 92 (derelict in the performance of duties) willfully failed to attempt to learn material required of him.
         Award: Forfeiture of $372 per month for 2 months, reduction to E-3. No indication of appeal in the record.
860514:  Retention Warning from Naval Nuclear Power School, Naval Training Center, Orlando, FL: Advised of deficiency and of consequences of further deficiencies, and issued discharge warning.

860521:  Applicant updated NAVPERS 1070 with marriage certificate, 02 May 1986.

860606:  Applicant administratively dropped from Navy Nuclear Power School, transferred to NTC Orlando.

860822:  Applicant briefed on U. S. Navy’s policy on drug and alcohol abuse.

870815:  Applicant charged with violation of UCMJ Article 107 (false official statement) and Article 108 (damaging, destroying or losing military property).
870821:  NJP for violation of UCMJ, Article 107 (false official statement) and Article 108 (damaging, destroying, or losing military property).
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 21 days, reduction to E-2. Reduction suspended for 4 months. No indication of appeal in the record.
870821:  Retention Warning from Commanding Officer, USS JOHN L. HALL (FFG 32): Advised of deficiency (Damaging, destroying, or losing military property and false official statements.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880713:  Applicant updated NAVPERS 1070 with divorce certificate, 05 July 1988.

881021:  NJP for violation of UCMJ, Article 112a (use of a controlled substance).
         Award: Forfeiture of $429 per month for 2 months, restriction and extra duty for 45 days, reduction to FCSN. No indication of appeal in record.
881213:  Applicant to unauthorized absence 0730, 13 December 1988.

881217:  Applicant from unauthorized absence 0023, 17 December 1988 (4 days/surrendered).

881219:  Applicant to unauthorized absence 0530, 19 December 1988.

890117:  Applicant from unauthorized absence 1920, 17 January 1989 (30 days/surrendered).

890118:  NJP for violation of UCMJ, Article 86 (unauthorized absence, 2 specs). Specification 1: Unauthorized absence from 0730, 13 December 1988 until 0023, 17 December 1988.
         Specification 2: Unauthorized absence from 0530, 19 December 1988 until 1920, 17 January 1989.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

890127:  Medical Department, USS John L. Hall (FFG-32), review of drug dependency. Admits smoking marijuana, denies dependency, uses more than one time per month mostly weekends, has gone months without use. No evidence of drug or alcohol dependency.
890208:  Commanding Officer, USS John L. Hall (FFG-32) recommended to Commander Naval Personnel Command the Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct, and misconduct due to drug abuse. CO comments, “He possesses no sense of duty, commitment or integrity. His performance demonstrates his self-centered attitude and total disregard for authority. He completely failed to respond to counseling, as his numerous NJP’s attest. FCSA A_ (Applicant) cannot be trusted with the simplest of tasks. He openly stated that he has and will continue to use controlled substances, regardless of Navy regulations. FCSA A_ (Applicant) was evaluated by LCDR F_, MC, USN, Naval Station Mayport Branch Clinic as not being drug or alcohol dependent. Based on this evaluation and the wholly unacceptable conduct for which this person is responsible, it is strongly recommended that he be administratively separated with an Other Than Honorable separation.”

890215:  Commanding Officer, USS JOHN L. HALL (FFG 32), letter dated 08 February 1989, notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct, and misconduct due to drug abuse.
890215:  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.
890224:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900620:  NDRB documentary record review Docket Number ND90-00852 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890327 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (A). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

 Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process. 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 characterization of service 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. T he Applicant’s service was marred by four nonjudicial punishments for violations of the UCMJ, Article 86 (unauthorized absence, 2 specifications); Article 92 (dereliction of duty); Article 107 (false official statement); 108 (damage, destroy, or losing military property); and 112a (wrongful use of a controlled substance) . MILPERSMAN Article 3630600 defines the misconduct for which the Applicant was discharged, “pattern of misconduct” as 3 or more punishments under the UCMJ within the current enlistment. Furthermore, reference (A) dictates that the service of a member separated for a pattern of misconduct shall normall y be characterized as under other than honorable conditions. Characterization of service as honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate. In the Applicant’s case the record clearly documented the pattern of misconduct for which he was separated. The Board could discern no impropriety or inequity and therefore considered the discharge proper and equitable. Relief denied.

Counsel for the Applicant submitted issues “A-H” with the initial application. In an effort to clarify the Applicant’s request on the basis of equity and propriety, counsel submitted issues “1-3” as additional issues on the day of the administrative hearing. In his opening remarks counsel for the Applicant conceded that issues A, B, and C are no longer at issue.

Issues 1 and D: The Applicant contends that his discharge based on a pattern of misconduct was improper because he was denied the right to due process. T he Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support this issue. To be legally sufficient, a pattern of misconduct is defined by Naval Military Personnel Manual, Article 3630600 as three or more punishments under the UCMJ within the current enlistment. The record clearly documents four punishments under the UCMJ and two retention warnings, during his single enlistment. Furthermore, during testimony the Applicant accepted total responsibility for all misconduct contained in the official record. In the absence of documented evidence to serve as a basis for the Applicant’s issue, the Board found no impropriety in the Applicant's reason for discharge. Relief denied.

Issues F, G, and 2: The Applicant contends that drug abuse, marital issues, personal and family problems impacted his ability to serve. The Applicant bears the burden of presenting substantial and credible evidence to support his issues. There is no evidence in the record, nor has the Applicant produced evidence, to support his contention. To the contrary, t he Applicant testified that he purposefully failed tests in an effort to be dropped from Nuclear Power School, he had no intention of conforming to the Navy’s policy on illegal drugs, and that he strategically planned his unauthorized absence in an effort to be discharged from his obligated service. When reviewing a discharge, the NDRB does consider the mental state of the Applicant and how that might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB does not consider the Applicant’s stated contentions to be of sufficient nature to exonerate his misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged mental state. Relief denied.

Issue E: The Applicant contends that the diagnosis of medically not dependant on drugs was in error and therefore justified his misconduct. The Applicant was screened by competent medical authorities and diagnosed as a drug abuser. This diagnosis was made based upon the information provide by the Applicant. Furthermore, the Applicant testified to the NRDB that marijuana is non addictive. Nevertheless, as an addict or an abuser, t he evidence of record clearly documents the Applicant’s blatant disregard for authority and does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The contention of an addiction to illegal drugs does not justify the pattern of misconduct for which he was discharged. Relief denied.

Issue 3: The Applicant contends that he was without sufficient capacity to waive his legal right to counsel and/or a hearing. T he Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his issue. A medical doctor evaluated the Applicant. This examination resulted in a diagnosis of not drug or alcohol dependent. Nothing in the record demonstrates that the doctor had any reason to doubt the Applicant’s mental state. The record does not demonstrate that the Applicant was incapable of rendering such a decision. In the absence of documented evidence to serve as a basis for granting an upgrade, the Board found no inequity or impropriety in the Applicant's characterization of service or reason for discharge. Relief denied.

Issue H: 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, and certification of non-involvement with civil authorities. The Applicant provided copies of his marriage certificate and Texas Board of Professional Engineers license (inactive). In the Applicant’s testimony he discussed his arrest for drug distribution and subsequent assistance to the DEA in an effort to escape charges levied by the IRS, ATF, and the FBI. For his assistance his punishment was reduced to three years of probation and attending 6 to 12 Narcotics Anonymous meetings. The Applicant stated that his only law enforcement contact since that time had been for minor traffic violations. The Applicant testified that he has earned a Bachelor of Science in Industrial Engineering and a Masters of Business Administration, he is a Six Sigma Black Belt, a member of the Georgia association of Industrial Engineers, and employed. During his time at the University of Tennessee, the Applicant testified that he was the President of the Institute of Industrial Engineers. The Applicant also testified that he has filed for bankruptcy and is not involved in his community. After careful consideration the Board concluded that the Applicant’s post-service achievements have been insufficient to mitigate his misconduct by while in the Naval service. Relief denied.

The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization service, if he desires further review of his case.

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 – A PATTERN OF MISCONDUCT.

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

 C. 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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