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NAVY | DRB | 2004_Navy | ND04-01010
Original file (ND04-01010.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND04-01010

Applicant’s Request
The application for discharge review was received on 20040608. 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. 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 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 – 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. “Around Dec 2 nd during the year of 1990, I was attached to a Naval Mobile construction battalion 5 th , stationed out of Port Huenemed CA. At present time I was on route going to another camp to pick up food supplies and my M-16 rifle fell out of my arms and went off shooting my petty officer 1 st class MS1 B____ in his right hand and going through his right knee cap. The next day I was approached by a Marine Corps JAG officer, and he questioned about what had taken place during the mishap. I explained to him that I had no knowledge of weapons training and that I had just gotten out of boot camp and that this was my first duty station. He also asked me, if me and my battalion was ever trained I combat and I told him no.
Two days later he contacted me and told me that MS1 B____ was critically injured and that he had lost 2 ½ right fingers and that he was moved to a Naval Hospital ship. During this ordeal, I was devasted, I went and talked to my X.O. Officer K___ and he explained to me that it was not my fault at all.
So I accepted that and tried to perform my duties as a Seaman Recruit Mess Specialist. After a couple of weeks went by, people looked at me funny due to the fact that were the best battalion in the Navy, I made a terrible reflection on my company. I went to my chaplain for a request to be sent home on a stress medical leave.
My response was ignored and I spent the next six months over in the desert.
When I finally returned back home to Port Huenemee, I saw MS1 B___ and I felt like I’ve never felt before. It was a terrible experience for me because I felt so much at fault from what had taken place over in desert storm.
I took a 30 day leave and went back to my home Kentucky finally I returned back to my duty station and I was assigned to work under MS1 B___ and I felt that I wouldn’t be able to perform my duties for the next 2 more years. I went to the NAACP “Mr H___” and also to the base chaplain requested to be re assigned to another duty station.
My request was denied twice. After a month went by, I had gotten into so much trouble while working under MS1 B___. I was constantly written up and sent to X.O. mask for U.A and also fighting and disorder conduct. I went and informed my mother “D___ D___” who resides at [address deleted] about how I was being treated. She contacted “L___ H___” who was our congressman at the present time in Lexington Ky for help. He told her that there was nothing he do.
I tried to commit suicide by jumping from the long beach bridge but God wouldn’t let me. Finally I started doing drugs, disrespecting officers and becoming someone who had no room for the military.
After all said and done, I tested positive for drugs twice so that I cold be released from the military, because no one cared about my feeling on what I had went through and experienced.
I’ve been out of the military for approximately 12 yrs and I’ve submitted documents to have my discharge upgraded from other than honorable to a honorable discharge. My concern’s on what’s going on today is devastating for all troop and there family’s. For 12 yrs I haven’t been able to receive dental or medical benefits plus I really want to go to school but the hundred dollars that the government took out of my check for 12 months for my G.I. Bill I haven’t received nothing. I have no kids, I can’t sleep at night hardly because of the situation that I was sent to fight for my country and I can’t receive nothing at all.
Now I know that I made a terrible mistake by smoking marijuana and forced to be kicked out. But it was either my life or my sanity.”

Additional issues submitted by Applicant’s counsel/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.

The FSM served on active service from July 3, 1990 to February 5, 1992 at which time he was discharged due to Misconduct - Drug Abuse (Use).

The FSM contends the current discharge is improper because he never received counseling for the traumatic event that occurred while on station in Saudi Arabia, as described on his application for upgrade. Feeling he had no choice but to use the drugs as charged, to establish a reason for discharge to save his life, instead of losing his sanity.

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 (c), Par. (f) (1).

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 5420.174C.

Under the premises of equitable relief, we believe the Board can change the character of the current discharge, keeping in mind that the applicant has suffered from the effects of this discharge for the last twelve years.
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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900406 - 900702  COG
         Active:                            None

 Period of Service Under Review :
Date of Enlistment: 900703               Date of Discharge: 920205

 Length of Service (years, months, days):

         Active: 01 07 01
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: MSSR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB*                 Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 3

*None Obtained

 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 :

901108:  Retention Warning: Advised of deficiency (Inconsistent performance, unauthorized absence, disrespect to section leader), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910801:  NJP for violation of UCMJ, Article 92: (3 Specifications), Specifications 1 and 2: Having knowledge of a lawful order issued by NMCB FIVE’s Medical Department, to perform no duties for 48-hours, fail to obey the same on 8 & 9 Jul 91, Specification 3: Having knowledge of a lawful order issued by CO, CBC, Port Hueneme, California, to wit: CBCINST 1626.4N, an order it was his duty to obey, on 910721, failed to obey the same by wrongfully having a guest of the opposite sex in Bachelor Enlistment Quarters (Barracks #54) after 2200 hours , violation of UCMJ, Article 91:Having received a lawful order from MS1 B_, on 910708 willfully disobeying the same, violation of UCMJ, Article 108: W illfully destroy, by breaking, one window panel, of a value of $50.00, military property of the United States .
         Award: Correctional Custody for 30 days. No indication of appeal in the record.
910909:  Retention Warning: Advised of deficiency (Your misconduct as evidenced by the Commanding Officer’s NJP of 910801, at which you were found guilty of violating the UCMJ, Article 91, Willful disobedience to a superior petty officer on 910708; Article 92, Specs 1 & 2: Having knowledge of a lawful order issued by NMCB FIVE, Medical Department, to perform no duties for forty eight hours, failed to obey the same, on 8 & 9 Jul 91, respectfully; Spec 3: Having knowledge of a lawful order issued by CO, CBC, Port Hueneme, California, to wit: CBCINST 1626.4N, failed to obey the same by wrongfully having a guest of the opposite sex in Bachelor Enlistment Quarters (Barracks #54) on 910721; and Article 108, On 910721, without proper authority, willfully destroy, by breaking, one window panel, of a value of $50.00, military property of the United States), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
911224:  Summary Court-Martial.
         Charge I: violation of article 86, unauthorized absence from 911129 to 911202.
 Charge II: violation of the UCMJ, Article 112a (2 Specifications), Specification 1: Wrongful use of cocaine on 911104; Specification 2: Wrongful use of cocaine on 911112.
          Finding: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $500.00 pay per month for 1 month.
         CA action 911231: Approved finding and sentence but the execution of that part of the sentence adjudging confinement in excess of 20 days is suspended for 2 months from the date of trial, at which time, unless the suspensions sooner vacated the suspended part of the sentence will be remitted without further action. [Extracted from CO’s message]

911224:  Medical Officer’s evaluation for drugs and alcohol found the Applicant alcohol dependent and drug abusive. [Extracted from CO’s message]
911224:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Summary Court-Martial of 911224 at which your were found guilty of violating the UCMJ, Article 112a, (2 specifications), wrongful use of cocaine, and misconduct due to commission of a serious offense as evidenced by the CO’s NJP of 910801 at which your were found guilty of violating the UCMJ, Article 91, willful disobedience to a petty officer on 910708, violating the UCMJ, Article 92 (3 Specifications), Having knowledge of a lawful order issued by NMCB FIVE, Medical Department, to perform no duties for forty eight hours (include bed rest and no liberty), fail to obey the same on 8 July and 9 July; Having knowledge of a lawful order issued by CO, CBC, Port Hueneme, California, to wit: CBCINST 1626.4N, failed to obey the same by wrongfully having a guest of the opposite sex in Bachelor Enlistment Quarters (Barracks #54) on 910721, and violating the UCMJ, Article 108, willfully destroy military property. [Extracted from CO’s message]
911224:  Applicant advised of rights and having elected 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. [Extracted from CO’s message]
920102:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious military offense and misconduct due to drug abuse.

920109:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920121:  Applicant declined treatment at VA Hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920205 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 1-2. The Applicant contends that he used drugs specifically to be discharged from the Navy. The Applicant indicated he was forced to choose between, “my life or my sanity.” The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. While the Applicant may feel that his personal problems were 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.

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 nonjudicial punishment and court-martial proceedings for seven violations of Articles 86, 91, 92, 108 and 112a 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.

The Veterans Administration determines eligibility for post-service benefits not the Navy 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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