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NAVY | DRB | 2004_Navy | ND04-00937
Original file (ND04-00937.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND04-00937

Applicant’s Request
The application for discharge review was received on 20040520. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions, entry level separation or uncharacterized. 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 20041103. 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. “CORRECTION OF MILITARY RECORDS BOARD MEMBERS,
MY NAME IS E_ A_ M_ (Applicant) I PREVIOUSLY SUBMITED MY REQUEST FOR A DISCHARGE REVIEW BUT I HAVE BEEN REDIRECTED TO SUBMIT THIS REQUESTING LETTER TO THE BOARD WHOM IS NOW READING THIS LETTER, THE NAVY DISCHARGE REVIEW BOARD.IM NOT SURE ON HOW TO START THIS LETTER OR WHAT ORDER I SHOULD STATE MY REQUESTS SO I RESPECTFULLY ASK THAT THIS BOARD TO PLEASE BARE WITH ME AND HEAR ME OUT.

OCT 15, 2001 WAS THE DAY I ARRIVED BACK TO MY NEW HOME IN PLYMOUTH MASSACHUSETTES AND THE FIRST WORDS MY FATHER (RET USN GMG1 M_ R_ W_) TOLD ME WAS” I HAVE TO BE YOUNG AND STUPID BEFORE I MAY GROW OLD AND WISE”. I AM 22 YEARS OLD NOW, I WAS BORN AND RAISED INTO A MILITARY FAMILY SO AS WAS MY PARENTS, AND I REGULARY CONFINED TO MY GRANDFATHER (RET. USN PRSC K_ F_ R_) ON WHERE I SHOULD GO FROM HERE, AND HIS ADVICE WAS “ IT DOSENT HURT TO ASK”. I RECENTLY EARLIER TODAY VISITED MY USMC RECRUITER SGT J_ A_ ON TO HEAR THAT MY REQUEST TO RE-ENLIST INTO THE USMC WHICH WAS APPROVED BY THREE OTHER OFFICERS WAS TO ONLY BE DENIED AFTER MAKING IT UP THE CHAIN OF COMMAND TO HIS GENRAL ON THE BASIS OF MY RE-ENTRY CODE WHICH IS RE-4. I AM AWARE THAT THIS BOARD HAS MORE IMPORTANT ISSUES AND BUISSNESS MATTERS TO ATTEND TO SO IM TRYING MY BEST TO NOT WASTE YOUR TIME BUT ONLY CONVINCE THE MEMBERS THAT I AM ONCE AGAIN READY TO MAKE A COMMITMENT INTO THE UNITED STATES ARMED FORCES. I KNOW I MEET THE REQUIREMENTS BOTH PHYSICALLY AND MENTALLY TO SUCCED AND SHOW THE COMMITMENT, AND HONOR THAT I HAVE TRIED FOR IN THE PAST. I MADE A MISTAKE IN THE PAST BUT I STRIVED AND TRIED MY HARDEST TO REMAIN IN THE UNITED STATES NAVY DURING THAT TIME. HERE IS THE PREVIOUS LETTER I HAD WRITTEN TO THE BOARD OF CORRECTIONS.

DURING THE SUMMER OF 2001 (EXACT DATE UNKNOWN) I SUPPOSEDLY TESTED POSITIVE FOR THC IN MY SYSTEM BY THE FRACTION OF A NANO-GRAM. I NEVER DID SEE ANY RESULT PAPERWORK PROVIDING THESE RESULTS OF THE URINALYSIS. AS TIME WENT BY I WAS IN DIRECT CONTACT TO NCIS AGENT D_ B_ IN WHICH I HAD SIGNED WRITTEN FORMS TO WORK WITH HIM AS AN INFORMANT REGARDING DRUG ABUSE AND KNOWLEDGE OF IT AND ITS USERS ON BOARD MY COMMAND, USS CARL VINSON CVN-70 IN RETURN TO FULLFILL MY ENLISTMENT, IN WHICH I WAS NOT ABLE TO GET IN A WRITTEN DOCUMENT. SO FOR ABOUT A MONTH I HAD PROVIDED NUMEROUS NAMES AND HELPFUL INFORMATION REGARDING THESE SITUIATIONS TO MY COMMAND, IN WHICH MY CO CAPT B_ W_ C_ WHOM IS NOW ADM B_ W_ C_ AND CMDR M_ M_ WAS AWARE OF. DURING THE MONTH OF JULY I WENT TO CAPTIANS MAST UNDER THE DIRECTION OF CAPT B_ W_ C_ AND RECIVED MY NJP ONLY YO FIND OUT THAT NO MATTER WHAT I WAS GOING TO BE DISCHARGED, KNOWING THAT CAPT C_ SAID” IF HE HAD THE POWER TO KEEP ME ENLISTED, HE WOULD”. MY COMMAND THEN DEPLOYED FOR WEST- PAC IN WHICH I MANAGED TO STAY ABOARD, AND WORKED ON MY XO’S” CHAIN GANG” CMDR M_ DURING THE BEGINNING OF DEPLOYMENT, ONLY TO BE THE ONE AND ONLY INDIVIDUAL TO BE RELESED FROM IT FROM SOME 60 RESTRICTEES DUE TO MY EFFORT AND ENTHUSIASM THAT I KEPT ALIVE IN MYSELF BY CMDR M_ HIMSELF. IN WHICH I WAS ALSO NOMINATED AND HONORED BLUE JACKET OF THE QUARTER WITHIN THE WEAPONS DEPT BUT NOT THE COMMAND DUE TO MY CIRCUMSTANCES. SEPT 11 CAME AND I REMAINED DOING MY DUTY AND TRYING EVERY WHICH WAY TO REMAIN IN THE UNITED STATES NAVY FOR THE REASONS I HAD WENT IN FOR, AS IN DEFENDING MY COUNTRY HAD AROUSED AND ESCALTED AT THAT TIME. I WAS EVENTULLY FLOWN BACK TO THE STATES WHERE I RECIVED MY DISCHARGE ON OCT 12 OF 2001.

I HAVE NO DOUBT THAT THIS BOARD OF MEMBERS IS LOOKING AT MY MILITARY RECORDS BUT I ASK THAT MY ACHIVMENTS BE TAKEN INTO CONSIDERATION ALONG WITH MY MERITORIOUS ADVANCMENTS AND THE LOA’S AND AWARDS, AND QUALIFICATIONS I HAVE ENCLOSED. I AM A HIGH SCHOOL HONOR STUDENT AND I KNOW THAT I WASENT READY AT 17 TO JOIN MY COUNTRYS NAVY ALSO ALONG WITH MY FATHERS PRESSURE TO GROW -UP AND BE A MAN. I AM A 22 YEAR OLD MAN NOW I WORK FOR HOME DEPOT AS A DEPT, HEAD AND RECOVERY TEAM LEADER AS WELL AS THE SAFTEY CAPT IN WHICH I HAVE ALSO RECIVED A FEW AWARDS FOR, BUT IN MY HEART I KNOW ITS NOT WHERE I WANT TO BE, ITS HARD TO WALK WITH ONES HEAD UP HIGH WITH SO MUCH BURDEN AND DISGRACE TO CARRY ALONG WITH IT. I KNOW I HAVE THE HEART AND DEDICATION TO SHOW MY COUNTRY WHAT I AM REALLY MADE OF AND WHOM I CAN BE. AND I WANT TO ONCE AGAIN SHOW AND PROVE MYSELF TO MY COUNTRY AND THE UNITED STATES ARMED FORCES THAT I AM AND CAN BE THE SOILDER THAT I HAVE ALWAYS WANTED TO BE, BUT THIS TIME THERES NO PRESSURE ON MY TO DO THIS, ITS MY OWN FREE WILL AND THIS IS ALSO THE TIME WHEN THE COUNTRY CAN USE JUST THAT ONE EXTRA PERSON TO HELP RESOLVE CONFLICT AND MAINTAIN A PRIDE OF FREEDOM. THE NAVY WASENT FOR ME BUT I DO KNOW WHERE I WANT TO BE, SO AS IN THE WORDS OF MY GRANDFATHER “ASK AND YOU SHALL RECIVE”. I E_ A_ M_ (Applicant) RESPECTFULLY REQUEST A REENTRY CODE INTO THE UNITED STATES ARMED FORCES OF AN RE-3 OR BETTER OR MY DISCHARGE OF OTHER THAN HONORABLE TO BE CHANGE TO AT LEAST A GENERAL, SO I MAY ONCE AGAIN TAKE AN OATH AND UPHOLD IT, ONLY TO KNOW THAT I MAY SIT BACK AND TELL THE STORYS THAT MY FATHER AND GRAND FATHER TELL ME JUST LIKE THE BOARD MEMBERS BEFORE THIS LETTER, WITH OUT A DOUBT IN MY LIFE KNOWING AND WONDERING ABOUT THE WHAT - IFS THAT COULD HAVE BEEN. THANK YOU FOR YOUR TIME AND PATIENCE.

SINCERELY E_ A_ M_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Travel certificate, Separation Without Orders, dated October 11, 2001
Evaluation Report and Counseling Record, dated July 15, 2000
Evaluation Report and Counseling Record, dated September 25, 2001
Certificate of completion, dated November 16, 1999
Certificate of appreciation, dated January 14, 2000
Letter of appreciation for March 4, 2001 through March 7, 2001
Certificate of nomination, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990812 - 990822  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990823               Date of Discharge: 011012

 Length of Service (years, months, days):

         Active: 02 01 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 56

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):*

 Performance: 3.33 (3)    Behavior: 1.67 (3)                OTA: 2.71

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 2

*Marks extracted from service record and supporting documents

 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 :

000216:  NJP for violation of UCMJ, Article 111: Driving while under the influence, violation of UCMJ, Article 134 (2 specs): (1) Wrongfully consuming alcoholic beverages while under the age of 21, (2) Wrongfully and falsely alter military identification card.
         Award: Forfeiture of $502 per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.
000217:  Retention Warning: Advised of deficiency (Misconduct as evidenced by your violation of the Uniform Code of Military Justice, Article 111 on 010211, driving a passenger vehicle under the influence of alcohol; Article 134: wrongfully consume alcoholic beverages while under the age of 21 in violation of Washington State Law, which conduct was of a nature to bring discredit upon the armed forces; Article 134: wrongfully and falsely alter by laminating a false birth date onto his military identification card in words and figures), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 000818:  NJP for violation of UCMJ, Article 134: Under age drinking.
         Award: Forfeiture of $502 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
000911:  NJP for violation of UCMJ, Article 86 (2 specs): Failed to go to restricted muster.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
010514:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010509, tested positive for THC.

010523:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010518, tested positive for THC.

010725:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0715, 010718 to 0730, 010720 (2 days), violation of UCMJ, Article 112A: Wrongful use of marijuana.
         Award: Forfeiture of $521 per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.
010725:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense and misconduct due to drug abuse.
010725:  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.
010819:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent. Recommend Level I treatment.

010916:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense and misconduct due to drug abuse.

010921:  COMCARGRU THREE 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 20011012 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: T he NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

A characterization of service 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 four occasions for violations of Articles 86, 111, 112a, and 134 of the UCMJ. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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.

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, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 33, effective 16 Jul 2001 until 21 Aug 2002, 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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