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NAVY | DRB | 2005_Navy | ND0500068
Original file (ND0500068.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND05-00068

Applicant’s Request
The application for discharge review was received on 20041015. 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 did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“ Upgrade needed for medical reason (asthma) and treatment for right elbow. During my time served the amount of awards and medals. During my Enlisted time served I only got into trouble once. I engaged in something that was not legal at the time (on a week-end pass) and it showed up in my urine test. I have no history of drug abuse before entry into the service, and no history of abuse while in the service. Please take into consideration this one incident and grant me a discharge of general status.”

 Issues submitted by Applicant’s counsel/representative (D ISABLED 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 his request for a discharge upgrade of his current Other Than Honorable (OTH) discharge to that of General Under Honorable Conditions.

The FSM served on active service from December 23, 1988 to July 31, 1992 at which time he was discharged due to misconduct, pattern of misconduct.

The FSM, based on submittal of the application, request a records review for an upgrade of the current OTH discharge, stating he was discharged due to a one-time drug related incident with no consideration to his prior military achievements and believes he was un-fairly treated.

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,

K_ L. G_
National Services Officer”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’s DD Form 214
Copy of 1 page from the Applicant’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881213 - 881219  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 881220               Date of Discharge: 920731

 Length of Service (years, months, days):

         Active: 03 07 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 10                        AFQT: 26

 Highest Rate: MSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.65 (4)             Behavior: 2.00 (4)                OTA: 2.40

 Military Decorations: None

 Unit/Campaign/Service Awards: N&MCOSR (2), NDSM

 Days of Unauthorized Absence: 2

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

881222:  Applicant briefed on Navy Policy on Drug and Alcohol Abuse as set forth in OPNAVINST 5350.4.

891116:  NJP for violation of UCMJ, Article 86, Unauthorized Absence.
 Award: Reduction in rank to E-1, reduction suspended for 1 month, 15 days restriction.
900829:  NJP for violation of UCMJ, Article 86, Unauthorized Absence, (2 specifications)
 Award: 30 days correctional custody unit. No indication of appeal in the record.

 900830:  Retention Warning from U. S, Naval Station, Subic Bay, Republic of Philippines: Advised of deficiency (failure to maintain acceptable standards of performance and misconduct as evidenced by two NJPs for unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901219:  Applicant UA from 0700 to 0815 901219.

 901228:  Applicant UA for muster 0700-0715, 901228, which is a violation of UCMJ Article 86 (Absence without leave).

910110:  Applicant UA for muster 0700-0725, 910110, which is a violation of UCMJ Article 86 (Absence without leave).

910118:  Applicant failed to report to his appointed place of duty, on or about 0645 910118.

910118:  Applicant failed to report to his appointed place of duty, on or about 0730 910118.
910125:  Applicant UA for muster 0700-0748, 910125, which is a violation of UCMJ Article 86 (Absence without leave).

910201:  Drug and Alcohol Abuse Report. Nature of incident is abuse. Primary substance of abuse involved in this incident is polydrug (none primary). Current frequency of abuse is not determined. Method of identification for this incident is service directed. Evaluation of dependency is not determined. Amenability to counseling/education/rehabilitation is not determined. Recommended disposition is not determined. Processing for separation. Rehabilitation recommendation is separate from service not via VA Hospital. Awaiting Special Court-Martial. No potential for future constructive Naval Service.

910222:  NJP for violation of UCMJ, Article 86, Unauthorized Absence – failure to go to appointed place of duty (6 specifications).
         Violation of UCMJ, Article 91, Disrespect to Superior Petty Officer (2 specifications)
         Violation of UCMJ, Article 128 - Assault
 Award: Reduction in rank to MSSR, forfeiture of $300.00 pay per month for 2 months, 45 days restriction and extra duties.
910528:  Counseling: Advised of deficiency (drug abuse), notified of corrective actions and assistance available.

910529:  Drug and Alcohol Abuse Report. Nature of incident is abuse. Primary substance of abuse involved in this incident is polydrug (none primary). Current frequency of abuse is not determined. Method of identification for this incident is service directed. Evaluation of dependency is not dependent. Amenability to counseling/education/rehabilitation is amenable and eligible. Recommended disposition is Level I treatment. Retain. Rehabilitation recommendation is Level I treatment including NADSAP. Potential for future constructive Naval Service is fair.

910711:  Applicant from UA at 2000, 919711.

920126:  Retention Warning from USS WABASH (AOR-5): Advised of deficiency (violation of UCMJ Art 128 - Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920126:  Retention Warning from USS WABASH (AOR-5): Advised of deficiency (violation of UCMJ Art 91 – Insubordinate Conduct Towards a Non-Commissioned Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920417:  NJP for violation of UCMJ, Article 112a, (2 specifications) Wrongful use of a controlled substance.
         Violation of UCMJ, Article 92, Failure to obey a lawful order.
         Violation of UCMJ, Article 128 - Assault
 Award: Forfeiture of $390.00 pay per month for 2 months, restriction to limits of the ship for 60 days..
920508:  Commanding Officer, USS WABASH (AOR 5) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct - commission of a serious offense as evidenced by CO USS WABASH (AOR 5) NJP on 16 April 1992. Misconduct-pattern of misconduct as evidenced by CO NAVSTA Subic Bay NJP on 16 November 1989, 30 August 1990 and 22 February 1992 and CO USS WABASH (AOR 5) NJP on 16 April 1992. Misconduct by reason of drug abuse and CO USS WABASH (AOR 5) NJP on 16 April 1992.
920508:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
920605:  Applicant having consulted with counsel certified under UCMJ Article 27B, elected to waive administrative separation board. Applicants letter to CO states: “After originally requesting an administrative board, I [Applicant] have consulted with an attorney and have decided to waive my right to an administrative board and all the privileges inherent in that procedure.”

920624:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct - pattern of misconduct and misconduct by reason of drug abuse. Commanding Officer’s comments: “The member [Applicant] is being process from the Naval Service due to misconduct; commission of a serious offense as evidenced by CO USS WABASH (AOR 5) NJP on 16 April 1992. Misconduct-pattern of misconduct as evidenced by CO NAVSTA Subic Bay NJP on 16 November 1989, 30 August 1990 and 22 February 1992 and CO USS WABASH (AOR 5) NJP on 16 April 1992. Misconduct by reason of drug abuse and CO USS WABASH (AOR 5) NJP on 16 April 1992. MSSR B_ is a discredit to the Naval Service since the time of his enlistment. It is my opinion that MSSR B_ has a serious problem with authority and rules of good order and conduct. This is evidenced by the record of non-judicial punishments in his service record. Efforts to correct deficiencies in his performance have been attempted and have failed. MSSR B_ has never been, and will never be, an asset to the Naval Service. I recommend he be separated from the Naval Service with a discharge characterized as Other Than Honorable.”

920724:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920731 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The Applicant and his representative contend that the Applicant served the United States well and he is entitled to an upgrade. 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 4 nonjudicial punishment proceedings for violations of Articles 86 (7 specifications), 91 (2 specifications), 92, 112a (2 specifications) and 128 (2 specifications) 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.

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 his conduct or that he should not be held accountable for his actions. Relief denied.

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 any 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 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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