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NAVY | DRB | 2004_Navy | ND04-01052
Original file (ND04-01052.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND04-01052

Applicant’s Request
The application for discharge review was received on 20040616. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20041122. 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. “I wish to re-enlist into the military and for education purposes.”

 2. “On the day 27 Nov 02. I AR H_ I. S_ (Applicant) went on leave upon arrival in Naval Station North Island, San Diego. I was aboard the USS CARL VINSON CVN-70 and my Permanent Duty Station was in Bremerton, WA. Upon arrival NASNI, I AR S_ (Applicant) went on leave for 15 days. I arrived at home later that night seeing my family and my wife really made me a happy sailor. When I left home to go back to work I left about 4 days early to enjoy some leisure time in Seattle. I did so, and ended up going to work, serving 1 day, and the following day, which was my duty day. I went to stay with friends on turnover day which was Sunday and I was to report back to work the next day, which was Monday. Regretful to say I did not show up, and after being sent to a Personal Development Board prior to departing the ship on leave I was scared of the consequences and needed to gather my thoughts to decide what to do.

Before I knew it my ship had departed Jan 13, and now 30 days has gone by and I am without a clue what to do. My parents have no idea what I had done, my friends I had been staying with had good advice to go back when I was ready. More time had passed and I was still scared to go back. I did know that what I had done was completely wrong and I deeply wanted to fix it. I have total remorse for what I had done, so I turned myself in 3 Feb 03. I was flown out to Honolulu, Hawaii to catch up with my ship at Naval Station Pearl Harbor. I was a returned deserter and was there to receive my punishment to go on and stay in the navy but only if given another chance to do so. I did mess up pretty bad. I was given a urinalysis popped for marijuana. I was around it during my deserter status did it once and am now clean I was around it seriously I did not do it all the time once was enough for me. Was sent to Summary court-martial and given 25 days confinement, forfeiture of $750, and dropped in rank. Then given an Other Than Honorable discharge. However, seriously I want to stay in to change my life back to what it was. I had some disciplinary problems basically Unauthorized Absence, mostly because of my chain of command and not being satisfied with my job there in the division.

Even though I was administrative I still did not get the respect I deserved. I started the war and strongly want to finish the war with the military. I am a sailor, that is now a veteran, and I want to be a sailor again. I need a little time to gather my thoughts, retake the ASVAB test, become rated and possibly if necessary to be sent to A school for a rating I will completely love. I was working aboard the USS CARL VINSON, with a very negative chain of command in the V-2 Division. I worked in Quality Assurance (QA) as an AZ. I worked there for a year, gained a lot of experience but realized it just wasn’t for me. I did not want to strike ABE, AZ, IC or any other rating in the Air Department. I want to change my rating and go in with a fresh start, and use the knowledge that I gained being in there for a year and 6 months. I need to be there Sir/Mam. This is my life that I want to live but the right way and that is on active duty serving my country. If given one more chance Sir/Mam I wish to be sent to shore duty for the remainder of my enlistment 2 years and 6 months. I did not adapt to the underway life... but willing to do my job on shore. I wish to be kept on the West Coast, preferably San Diego. I need to be here, on the West Coast as to my family, and my wife is here. I leave it all in your hands Sir/Mam. Respectfully Request to be reinstated to Active Duty in the United States Navy.

THANK YOU,

AR H_ I_ S_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, dated April 15, 2004
Thirty-two pages from Applicant’s service record
DD Form 149, dated April 20, 2004
Letter from Applicant’s grandparents, dated April 20, 2004
Letter from Applicant’s parents, dated April 20, 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USAR (DEP)     Unk - 010601     Not found in record
 USNR (DEP)      010830 - 011001  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 011002               Date of Discharge: 030305

 Length of Service (years, months, days):

         Active: 01 05 04                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4
Education Level: 12                        AFQT: 31

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 1.50 (2)                OTA: 2.17

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 61

 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 :

020514:  NJP for violation of UCMJ, Article 86: Unauthorized absence 020326 to 020411 (15 days).
         Award: Correctional custody for 30 days. No indication of appeal in the record.
020617:  Retention Warning: Advised of deficiency (Commanding Officer’s NJP on 020514 for VUCMJ Article 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030211:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030206, tested positive for THC.

030214:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 021216 to 030203 (46 days).
         Charge II: violation of the UCMJ, Article 87 (2 specs):
         Specification 1: Miss ship’s movement on 030113.
         Specification 2: Miss ship’s movement on 030117.
          Finding: to Charge I specification 1 thereunder, guilty. To Charge II and specification I thereunder, guilty. Charge II and specification 2 thereunder not guilty.
          Sentence: Forfeiture of $750.00, confinement for 25 days, reduced to E-1.
         CA action 030217: Sentence approved and ordered executed.

030215:  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 commission of a serious offense and misconduct due to drug abuse.
030215:  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.
030216:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and drug abuse (use).

030216:  COMCARGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

030228:  NJP for violation of UCMJ, Article 134: Underage drinking on 030222.
         Award: Forfeiture of $575 per month for 1 month, restriction and extra duty for 15 days. Extra duty suspended for 6 months. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030305 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 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.

Concerning reenlistment and 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 2. There is credible evidence in the record the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in service characterization of under other than honorable conditions. The evidence of record does not demonstrate the Applicant was 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 proceedings for violations of Articles 86 and 134 of the UCMJ. The Applicant was also subject to a court-martial conviction for violations of Articles 86 and 87 of the UCMJ, both of which are considered serious offenses. In addition, there is evidence the Applicant violated article 112a of the UCMJ, an offense which was not adjudicated. 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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief denied.

The Applicant contends that his problems in the Navy can be attributed to not being “satisfied” with his “job” and his chain of command. While he may feel that his dislike for his occupational specialty and his chain of command 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.

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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