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NAVY | DRB | 2004_Navy | ND04-01095
Original file (ND04-01095.rtf) Auto-classification: Denied


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


ex-RMSN, USN
Docket No. ND04-01095

Applicant’s Request
The application for discharge review was received on 20040622. 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 3630600.







PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:
1. “In the issue that concerns the nature of current discharge under other-than-honorable conditions; entitles war veteran to no benefits. As of the year 1993 and following service member # (social security number deleted) did honorably serve during war time for almost complete enlistment. Petty Officer V_ (Applicant) (me) did submit required deliberations of early seperation prior to EOS during time pending; and was approved. Issues regarding civilian authorities during the process changed the enlistmen’s decision. The record shows an arrest for possesion of a control substance. The US Navy captured the arrest with a captain’s mass following the incident. Seaman V_ (Applicant) was demonted from his security clearance and issued a reduction of rank, charged with “intent to manufacture” for less than 1 gram of a Lab test positive result controlled substance what appear to be Meth. The results on random urinalis test was negative; thus I pleaded guilty to the charge. Following the conditions of seperation and complying this to the Military’s policy of “0” tolerance I seperated with no benefits.”
 I have spoken with a few representatives regarding my discharge. Since then I’ve had a few problems with issues; so when I heard somethings about rehabilitation and programs for vets with problems; I heard the counselor and advised me to submit some paperwork regarding this discharge. May the nature of my discharge be reviewed and considered for upgrade; to make me elgible to this programs. I was never given any counceling for this offense. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Back page of DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900124 - 900205  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 900206                        Date of Discharge: 931207

 Length of Service (years, months, days):
         Active: 03 10 02
          Inactive: None
Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 25
Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.68 (5)                      Behavior: 3.53 (6)                OTA: 3.77

 Military Decorations: None
Unit/Campaign/Service Awards: JMUA, NDSM, SASM with Bronze Star, SSDR, CGR
Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900207:  Applicant briefed on Navy's policy of drug and alcohol abuse.
910412:  NJP for violation of UCMJ, Article 128 (2 specs): Assault, violation of UCMJ, Article 117 (3 specs): Provoking words.
Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Suspend all but $400.00 of forfeiture. No indication of appeal in the record.
910416:  Retention Warning: Advised of deficiency (Assault and provoking words), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920109:  NJP for violation of UCMJ, Article 92: Disobeyed a lawful regulation, violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $300 per month for 1 month, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record.
920116:  Retention Warning: Advised of deficiency (Failure to obey a lawful regulation and assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931014:  Arrest Report: Drunk in public and possession of cocaine.
931016:  NJP for violation of UCMJ, Article 134: Drunk and disorderly on 0152, 931014.
         Award: Forfeiture of $613 per month for 1 months, restriction and extra duty for 30 days. No indication of appeal in the record.
931021:  Report from LA County Sheriff’s Department, Scientific Services Bureau: 0.082 gram(s) of powder containing methamphetamine.
931108:  NJP for violation of UCMJ, Article 112a: Wrongfully possessing a controlled substance, to wit: methamphetamine.
         Award: Forfeiture of $520 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
931109:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.
931109:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. Applicant did not object to separation.
931110:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.
931203:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931207 under other than honorable conditions for misconduct due to commission of a serious offense (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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on four separate occasions for violating the UCMJ, Articles, 92, 112a, 117, 128 and 134 and civilian arrest for being drunk in public and possession of illegal drugs thus substantiating his misconduct . Illegal drug abuse is considered a serious offense. The Applicant’s summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade would be inappropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
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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