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NAVY | DRB | 2004_Navy | ND04-01137
Original file (ND04-01137.rtf) Auto-classification: Denied


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


ex-MSSR, USN
Docket No. ND04-01137

Applicant’s Request
The application for discharge review was received on 20040707. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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:
“I believe that I should be awarded an upgrade based on my time served, before the assault. In boot camp, and A school I was in a leadership position and proved that I was up for the challenge. I committed to being and doing the best I could do. And until the night of the assault, I proved it.
After the assault I just did what I had to to get out. I felt like My Navy career was over and became discouraged. However, I did not want at that time to seek help; besides I was a strong person, “I’ll live” and did okay for about 4-5 months and I just started feeling like I was going crazy so I turned to what ever I could to feel better and that’s when I started using drugs to help ease the pain and confusion. Soon after I popped positive; I remember thinking – well at least I’ll get out of here and go home. Anyway before the assault I wanted to retire from the Navy I loved my newly launched career I was starting. And hopefully thru my records it will prove that I was doing all I could to be the best I could be.
M_ P_ (Applicant)”

 Additional issues submitted by Applicant’s representative (Disabled American Veterans):
“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 her request for a discharge upgrade of her current Other Than Honorable Discharge to that of General Under Honorable Conditions.

The FSM served on active service from August 28, 1995 to August 5, 1996 at which time she was discharged due to Misconduct.

The FSM goes onto explain on the application that the problem with her active duty was not the service itself but the improper actions that ultimately lead up to her inappropriate behavior, as explained in her attachment. She submits for equitable relief by the Board to enable her to continue making positive steps in her life.

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.
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.

 Respectfully,”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’s DD Form 214
Statement from Applicant (4 pages), not signed and not dated
 Performance reference, dated June 5, 1996
Performance reference, dated June 5, 1996

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950824 - 950827  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 950828               Date of Discharge: 960805

 Length of Service (years, months, days):
         Active: 00 11 08
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 32
Highest Rate: MSSR

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

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 18
*No marks found in service record.
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 :

960406:  Applicant to unauthorized absence 0430, 960406.
960407:  Applicant from unauthorized absence 1030, 960407 (1 day/surrendered).
960407:  Retention Warning: Advised of deficiency (Unauthorized absence on 960406 from 0430, until 960407, 1030.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960415:  Applicant to unauthorized absence 0530, 960415.

 960417:  Applicant from unauthorized absence 0730, 960417 (2 days/surrendered).
960514:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 960502, tested positive for THC.
960515:  Applicant to unauthorized absence 1430, 960515.

 960530:  Applicant from unauthorized absence 1200, 950530 (14 days/surrendered).
960520:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 960502, tested positive for THC.
960620:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 960415 to 960416, (2) Unauthorized absence from 960515 to 960530, violation of UCMJ, Article 112A (2 specs): (1) Wrongfully possess marijuana on 960422, (2) Wrongfully use marijuana on 960422.
         Award: Forfeiture of $435.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
960621:  Drug and Alcohol Abuse Report: Marijuana abuse and possession, ashore off duty. Unit sweep urinalysis 960604. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: 960620 MSSR M_ (Applicant) tested positive for marijuana, CO’s NJP, VUCMJ Art 112a, (2 spec) wrongful use of marijuana and possess of marijuana. Awarded: 45 days restriction and extra duties, and FF $435.00 PPM x 2 months. Due to the Navy’s zero tolerance for drug abuse, MSSR M_ (Applicant) is being processed for separation. Final DAAR this incident.
960624:  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 960620.
960624:  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.
960626:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
960702:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug or alcohol dependent.

960717:  Commander, Combat Logistics Group TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960805 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).
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 her conduct or that she should not be held accountable for her 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 a nonjudicial punishment proceeding for violations of Articles 86 (2 specifications for UA 18 days) and 112a (2 specifications) of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her 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 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 her 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 9/94, effective
22 Jul 94 until 02 Oct 96, 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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