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NAVY | DRB | 2004_Navy | ND04-00921
Original file (ND04-00921.rtf) Auto-classification: Denied


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


ex-AOAR, USN
Docket No. ND04-00921

Applicant’s Request
The application for discharge review was received on 20040512. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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 3630620.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 “PLEASE SEE THE ATTACHED MEMO.
1. THE DISCHARGE I RECEIVED WAS OVER 10 YEARS AGO AS STATED IN THE ATTACHED MEMO.
 2. I WOULD LIKE TO HAVE THIS DISCHARGE UPGRADED TO AN HONORABLE STATUS SO THAT EMPLOYERS AND OR ANYONE ELSE WHOM HAS ACCESS TO MY SOCIAL SECURITY NUMBER WOULD NOT KNOW WHIT I DID 10 YEARS AGO. THIS IS ALSO MENTIONED IN THE ATTACHED MEMO.
3. I WOULD LIKE THE OPPORTUNITY TO APPLY FOR STATE AND GOVERNMENT JOBS IF I SO CHOOSE. THIS HAS ALSO BEEN ADDRESSED IN THE ATTACHED MEMO.”

 4. “ To Whom it May Concern.
I am writing this memo to hopefully have my military discharge status upgraded from being discharged under Other Than Honorable Conditions to an Honorable discharge. I regret, and am not proud of the dictions I made during that time in my life. I would greatly appreciate the opportunity to move on without having other people (employers) etc. know what I did or didn‘t do when I was 19 and 20 years old. Some of the things I did then, I would never consider doing now, and I would like to have the opportunity to start over. This discharge has been on my record and has been accessible for employers and anyone whom has access to my social security number to view for over 10 years. I am not writing this memo to make excuses for my actions or to try to justify why I was right, because I know I was wrong.
 I was discharged from the Navy under Other Than Honorable Conditions for drug abuse and have had to live with that ever since. I am, to say the least, very embarrassed by my actions and would be open to do anything, including any drug testing to have this discharge reversed and upgraded to an honorable status. I have been working in the biotech industry since June of 1996 and have had a great record with the companies I have worked for. I have been promoted steadily though the years and am now a Manufacturing Associate II in the Purification Department for Amgen.
Again, I would like to state that I in no way think my actions during my time in the Navy were justified; however I am hoping I can have this discharge upgraded, so that I will have the freedom, once again to apply for state and government jobs if I so choose, without this discharge hanging over my head. I appreciate your consideration in this matter.

Sincerely,
(Signed ) C_ S. W_ (Applicant)”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910214 - 910414  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 910415               Date of Discharge: 940307

 Length of Service (years, months, days):
         Active: 02 10 23
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 46
Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 1.90 (2)    Behavior: 1.90 (2)                OTA: 2.00
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: 12

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

910424:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities consisting of the following: Shoplifting in Nov89 in Ferndale, WA: Served 8 hours community service. This waiver is being granted by the Commanding Officer, RTC, San Diego, CA. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

920414:  NJP for violation of UCMJ, Article 86 (4 specs) (1) Unauthorized absence from EMI on 920331, (2) Unauthorized absence from unit on 920326, (3) Unauthorized absence from unit 1530, 920320 to 0730, 920321, (4) Unauthorized absence from unit 1300, 920409 to 1130, 920420.
         Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 4 months. No indication of appeal in the record.
920511:  Vacate reduction to E-1 awarded at CO’s NJP dated 920414 due to continued misconduct.
920511:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from restricted men’s muster at 1100, 920421, (2) Unauthorized absence on 0630, 920422, (3) Unauthorized absence on 1500, 920505.
         Award: Confinement of bread and water for 3 days. No indication of appeal in the record.
920720:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

921006:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana on 920816, violation of UCMJ, Article 134: Wrongfully consume alcoholic beverages while under the age of 21 on 920815.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
921020:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s nonjudicial punishment on 921006 for the wrongful use of marijuana and alcohol abuse rehabilitation failure as evidenced by your failure to participate in, cooperate in, or successfully complete Level II or Level III treatment.
921020:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
921104:  Applicant counseled regarding 30 days inpatient treatment for drug/alcohol abuse at a Veterans Hospital prior to discharge. Applicant declined treatment.

 930222:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Random urinalysis 920816. DAPA and physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: Mbr is being administratively separated for drug use in accordance with OPNAVINST 5350.4B and the Navy’s zero tolerance for drug abuse.

930301:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of alcohol abuse rehabilitation failure.

930322:  BUPERS 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 19940307 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).
Issues 1-4: A service characterization of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three separate occasions for violating the UCMJ, Articles 86, 112a and 134 thus substantiating his misconduct. Drug abuse warrants processing for separation, normally under other than honorable conditions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a honorable characterization of service. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. 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 considered the Applicant’s discharge proper and equitable.

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. However, 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 any 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. E vidence of continuing educational pursuits, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. As of this time, the Applicant has not provided any documentation for the Board to consider.

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 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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