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NAVY | DRB | 2005_Navy | ND0500578
Original file (ND0500578.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND05-00578

Applicant’s Request
The application for discharge review was received on 20050217. The Applicant requests the characterization of service received at the time of discharge 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 20050608. 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 served on Active Duty for 5 years, 6 months, and 12 days. I believe my entire period of Active Duty service should have been considered in the decision to assign a character of service. I believe my service was Honorable except for one incident that I acknowledge reflected a very regrettable lapse in judgment and professionalism. I understand the Navy policy of Zero Tolerance. I only ask that I am not made to pay for one mistake for the rest of my life with a character of service that is not reflective of the totality of my Active Duty service. I know I can never serve in the US Navy again, yet I can continue in my service to our nation by establishing myself as a contributing member of society. I believe education is the key to that goal. By granting me an Honorable character of service, I would be allowed to better pursue my civilian educational goals. I ask for favorable consideration of my request.”

2. “I feel my discharge was inequitable because it was based on an isolated incident in over five years of committed service.
The unfortunate event that lead to my departure from the Navy involved heavy drinking and poor decision. I had attended a summer party of some acquaintances which is where the heavy drinking occurred. At some point during the night I apparently partook in the use of marijuana. I truly believe that if I had not been drinking I would have made a wiser decision and left the party. I’ve never been a smoker of marijuana or even cigarets so I know I would not have chosen to partake with sound mind.
I believe I deserve my request be granted because my attitude and record of service is acknowledged as that of an honorable sailor. In part, indicated by above average evaluations and recognition in the Nimitz News for pride, courage, and positive ness. Not to exclude the Good Conduct Award, Junior Sailor of the Month award for the second largest department on the ship-Reactor Dept., in April 1999, and authorization for early promotion to Petty Officer Second Class in June 1999. I feel it would be an injustice to classify my service based on one night verses that of a clearly stellar track record.
After my Captain’s Mast I had been exploring the option of an Administrative Board to petition for a better discharge than what was recommended. I collected various character witness questionnaires and the consensus is that I was an honorable, committed, and courageous sailor. Also, with a discharge being inevitable – in accordance with policy, that it should not result in the loss of benefits, particularly the G.I. Bill. I had already been taking advantage of the tuition reimbursement program and doing well at Thomas Nelson Community College in Hampton, VA.
 I decided against proceeding with the Administrative Board because I’d been filled with regret, since after losing my necessary clearance I could no longer perform in my rating. My morale was low and I became eager to leave and regroup. I did , however, voluntarily participate in SARDC (Substance Abuse Rehabilitation Dept. Clinic) prior to my discharge to begin my healing process.
I went back home to Michigan and earned a Class A Commercial Drivers Licence then went to driving a “big rig” throughout the country for CRST International out of Cedar Rapids, IA. [ Note : Where in accordance with D.O.T. (Dept. Of Transportation) regulations was subject to pre-employment drug screening and random urinalysis.] This gave me a lot of time to think about my next move and to deal with the depression I was then facing. Now, realizing that no matter how traumatizing this ordeal has been, my pride in the fact that I’ve served my country in the U.S. Navy has not changed nor has my desire to achieve my goals. I am currently attending courses at Washtenaw Community College in Ypsilanti, MI and I’ll need the G.I. Bill to help graduate.
Admittedly the main reason for this petition is to obtain the G.I Bill, for which I have made the required $1200 contribution. I still feel as if my time of service should be recognized as honorable. In addition, with this request honored I will have a guaranteed opportunity to graduate college and continue to make myself a better person.

[signed] M_ R. S_ (Applicant)”
 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Letter of recommendation from Applicant’s father, M_ P. S_, dated September 5, 2004
Letter of recommendation from Applicant’s mother, M_ S_ E_, dated July 7, 2004
Letter of recommendation from E_ W_, dated August 25, 2004
Unofficial student transcript from Thomas Nelson Community College, dated August 31, 2004 (2 pages)
Certificate from Franklin College Truck Driving School, dated September 19, 2000
Applicant’s Outpatient (OP) Treatment Program Completion from Substance Abuse Rehabilitation Department Clinic, USS NIMITZ (CVN 68), R. L. P_, SMCS (SW/AW) USN, dated October 8, 1999
Authority to assume the title and wear the uniform of a Petty Officer second class letter from Commanding Officer, USS NIMITZ (CVN 68), dated June 11, 1999
NIMITZ NEWS, volume 22 No. 89, dated July 19, 1997 (2 pages)
Junior Sailor of the Month Certificate, dated April 1999
Certificate of Good Conduct Award, dated April 17, 1997
Applicant’s student profile, Thomas Nelson Community College, dated February 24, 2000
Potential Character Witness Questionnaire (Administrative Board), T_ J. C_, MMC, dated September 2, 1999 (2 pages)
Potential Character Witness Questionnaire (Administrative Board), B_ K. B_, MMCM, dated September 2, 1999 (2 pages)
Potential Character Witness Questionnaire (Administrative Board), D_ W. Y_, E-7, dated September 9, 1999 (2 pages)
Potential Character Witness Questionnaire (Administrative Board), D_ T_, LT, dated September 2, 1999 (2 pages)
Potential Character Witness Questionnaire (Administrative Board), H_ F. H_, MM1, dated September 8, 1999 (2 pages)
Potential Character Witness Questionnaire (Administrative Board), G_ S_, E-6, dated September 9, 1999 (2 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930522 - 940417  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940418               Date of Discharge: 991029

 Length of Service (years, months, days):

         Active: 05 06 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 80

 Highest Rate: MM2 (Frocked)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.57 (7)             Behavior: 2.71 (7)                OTA: 3.31 (7)   

Military Decorations: None

 Unit/Campaign/Service Awards: NUC, MUC, GCM, NDSM, AFEM, SSDR (3)

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

990611:          Applicant frocked to MM2.

990730:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990723, tested positive for THC.

990819:  NJP violation of UCMJ, Article 112a (Spec): Wrongful use of marijuana.
         Specification: MM2 M_ R. S_ (Applicant), U.S. Navy, USS NIMITZ (CVN 68), on active duty, did, at or near Hampton Roads Area, Virginia, on or about July 1999, wrongfully use marijuana.
         Award: Forfeiture of $637.00 pay per month for 2 months, restriction and extra duty for 45 days, unfrocked and reduction to E-3. No indication of appeal in the record.
990820:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse as evidence by your nonjudicial punishment of August 19, 1999.
990820:  Applicant advised of rights and having consulted with qualified counsel, elected to appear before an Administrative Discharge Board.
990913:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse as evidence by your nonjudicial punishment of August 19, 1999
990913:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.

990930:  Medical Officer, USS NIMITZ (CVN 68), Medical dependency evaluation: Applicant is a drug experimenter, does not have a drug problem. Applicant at the time was enrolled in CAAC Level I with a completion date of 08OCT99.
         Applicant is an alcoholic abuser without dependence.
         [Extracted from USS NIMITZ Msg R 052002Z OCT 66 ZYB]
991005:  Commanding Officer, USS NIMIZ, recommended to COMCRUDESGRU FIVE, applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments (verbatim): SNM was well aware of the Navy’s zero tolerance policy. MBR admitted to using marijuana at captain’s mast. MBR has no potential for further naval service. I strongly recommend that she be separated with an other than honorable discharge.

991018:  Commander, Cruiser-Destroyer Group FIVE authorized Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991024:  DD Form 214: Applicant discharged.

991108:  Commanding Officer, USS NIMITZ, forward discharge documentation to CNPC and advised member was discharged on October 29, 1999 by reason of drug abuse with a characterization of Other than Honorable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991029 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: 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. 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 violation of Article 112a 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits i.e. G. I. Bill, 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 educational or employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The Applicant states her discharge was based on one isolated incident in “5 years, 6 months and 12 days”. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service of under other than honorable conditions. There is credible evidence in the record that the Applicant used illegal drugs. The Applicant’s service record is marred by an award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which she was separated. 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable. Relief denied.

 The following is provided for the edification of the Applicant. 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 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 credible evidence of a substance free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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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