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NAVY | DRB | 2004_Navy | ND04-01195

Original file (ND04-01195.rtf) Auto-classification: Denied

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

ex-MMFN, USN
Docket No. ND04-01195

Applicant’s Request

The application for discharge review was received on 20040721. 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 listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224. 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 considered 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 am now enrolled and attending Wyoming Technical Institute. I am studying Diesel Technology and Business. When I am finished I would have received an Associates in Diesel Technology and Applied Science. My interests after school include joining the Naval Reserves and working for Caterpillar here in Cheyenne, WY.

I have been out now for three years. I realize what a mistake I made over something so childish, but I also know that I was a child. I have learned quite a bit since being out, about life and responsibility. This upgrade would help me considerably in my future plans to live a successful life.

Thank you for you time and dedication. Hope to hear from you soon.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflects that this former member maintained performance and conduct markings of 2.28 ITA and earned the AFSM, BER (2) and ESWS. She was awarded NJP on 010216 for VUCMJ, Articles 86, 112a. Following due process notifications, she was discharged on 010420 Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that her discharge be upgraded because she regrets her misconduct and because she has been a good citizen since her discharge. She has submitted 3 pages of additional documentation attesting to her good post-service character and educational pursuits for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Character reference from E_ R_ dtd 040412
Character reference from K_ G_ dtd 030827
Ltr from Captain L_ M_ to Applicant dtd 030825 (records check)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     970131 - 971201 COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 971202               Date of Discharge: 010420

Length of Service (years, months, days):

         Active: 03 04 09                  [Does not exclude lost time]
         Inactive: None

Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

Highest Rate: MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.33 (3)    Behavior: 2.00 (3)                OTA: 1.94

Military Decorations: None

Unit/Campaign/Service Awards: AFEM, BER (2), ESWS

Days of Unauthorized Absence: 121

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 :

990212: Medical Evaluation:
AXIS I: 1. Alcohol dependence with physiological dependence               2. Mood disorder, by history.
AXIS II:         Deferred
AXIS III:        None
Recommendations: Using the American Society of Addiction Medicine patient placement criteria, appropriate for Intensive Outpatient Treatment.
It is unlikely that anti-depressant medication will address her symptoms, which present in the context of occupational stressors. Additionally, there is the likelihood that this patient will continue to use alcohol while taking the medication.

990301: Medical evaluation:
         AXIS I: 1. Alcohol dependence
                           2. Occupational Problems
         AXIS II:         Antisocial and immature personality traits
         AXIS III:        None
Recommendations: The patient was disenrolled from alcohol treatment due to strong suspicious by treatment staff that she was “huffing” nitrous gas from whipped cream cans, an allegation which she tepidly denied. However, she was encouraged to remain abstinent from alcohol and given Continuing Care Recommendations.

000916: Applicant to UA.

000926: Applicant missed ship’s movement.

010116: Applicant from UA.

010124: NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010119, tested positive for [THC].

010216: NJP for violation of UCMJ, Article 86: Unauthorized absence for 121 days, violation of UCMJ, Article 112a: wrongful use of a controlled substance.
         Award: Forfeiture of $653.00 per month for 2 month(s), restriction and extra duty for 45 days. No indication of appeal in the record.

010223: Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse and by reason of misconduct due to commission of a serious offense with the least favorable characterization of service as under other than honorable conditions.

010223: Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010402: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) as evidenced by all drug incidents this enlistment and by reason of commission of a serious offense evidenced by service record entries.

010409: Commander, Amphibious Group Two directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010420: Applicant declined Level I treatment for alcohol dependence.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010420 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. 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 112a of the UCMJ for 121 days in unauthorized absence and illegal drug use. The Applicant’s unauthorized absence for 121 days and resulting missing of ship’s movement constitute serious offenses. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

The Applicant contends that her problems in the Navy can be attributed to her being a “child” at the time. While she may feel that her immaturity was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that her discharge was appropriate and that her evidence of post-service conduct was found not to mitigate the conduct for which she was discharged. Relief denied.

Regarding reenlistment, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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NAVY | DRB | 2004_Navy | ND04-01195

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