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NAVY | DRB | 2005_Navy | ND0500601

Original file (ND0500601.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-ETSN, USN
Docket No. ND05-00601

Applicant’s Request

The application for discharge review was received on 20050218. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region and that his characterization of service be changed to honorable. The Applicant designated the American Legion as the representative on the DD Form 293. The Applicant notified the Naval Discharge Review Board of his inability to be present for the requested personal appearance hearing therefore, a documentary review was conducted.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. After a thorough review of all available 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 characterization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

“Issue 1: Discharge was inequitable due to the fact that I was suffering severe depression based on martial problems and I voluntarily sought treatment.

Issue 2: The undesirable discharge was inequitable due to the fact that I achieved the rank of CPO (E-7) in minimum time and my evaluations and professional competence were excretory.

Issue 3: Consideration should be given that I have recognized by both military and civilian organizations for my positive activities.

Issue 4: Copies of two previous Honorable Discharges and one OTH. All show dedication and professional competence performance reports.”

The Applicant’s representative submitted no issues.

Additional issues submitted by Applicant’s representative (American Legion):

“XXXXXXXXXXXXXXXXXXXXX.”

Documentation

The Applicant submitted the following additional documentation to be considered in addition to his service and medical records:

Applicant’s DD Form 214 (86 Mar 28 – 92 Mar 30, 2 copies)
Applicant’s DD Form 214 (76 Apr 15 – 81 May 17, 2 copies)
Applicant’s DD Form 214 (81 May 18 – 86 Mar 27, 2 copies)
Enlisted Performance Evaluation, 89 Oct 01 – 90 Sep 30
Enlisted Performance Evaluation, 88 Oct 01 – 89 Sep 30
Enlisted Performance Evaluation, 87 Oct 01 – 88 Sep 30
Enlisted Performance Evaluation, 86 Sep 16 – 87 May 29
Enlisted Performance Evaluation, 85 Dec 01 – 86 Sep 15
Enlisted Performance Evaluation, 84 Dec 01 – 85 Nov 30
Enlisted Performance Evaluation, 84 Dec 01 – 85 Feb 28
Enlisted Performance Evaluation, 84 Aug 01 – 84 Nov 30
Enlisted Performance Evaluation, 83 Dec 01 – 84 Jul 31
Enlisted Performance Evaluation, 83 Jan 15 – 83 Nov 30
Special Court Martial Order No 3-91, 17 September 1991 (3 pages)
Certificate of Appreciation from Council on Vocational Education, dated May 1986
Letter of Appreciation from Service School Command Naval Technical Training Center Great Lakes, for the period of January through April 1984
Citation from Commander, Naval Technical Training Center, Great Lakes, for the period of April through June 1984
Request for clemency, dated August 19, 1991 (3 pages)
Statement of accused, dated July 19, 1991 (11 pages)
Navy League of the United States of America, Outstanding Enlisted Person’s/Junior Officer Award, dated January 18, 1985 (2 copies)
Certificate of Appreciation for participation in the PreTech program: Basic Electricity, dated January 28, 1987 (2 copies)
Certificate of Appreciation for participation in the 1985-86 Pretechnology Program, dated June 25, 1986 (2 copies)
Certificate of Appreciation for participation in our Challenge for the Future Conference, dated May 09, 1986 (2 copies)
Certificate of Appreciation for presenting at the Elementary Career Education Exchange Workshop, dated April 25, 1985 (2 copies)
Certificate of Appreciation for Pre-Tech Electricity/Electronics Coordinator, dated April 20, 1985 (2 copies)
Certificate of Appreciation for Curriculum Development and Instruction in the PreTechnology Electricity/Electronics Program for 8 ^th Grade Students, for the period of September 22 through November 17, 1984 (2 copies)
Certificate for being a presenter at Antioch Community High School, dated December 03, 1985
Certificate of Appreciation from Wau Kegan Special Education, dated February 26, 1985
Thank you letter from Woodland School, undated
Letter of appreciation from Woodland School, dated November 16, 1984 (2 copies)
Thank you letter from Avon Center School, dated November 19, 1984 (2 copies)
Thank you letter from cgc Lake County Career Guidance Consortium, dated November 19, 1984
Thank you letter from Rondout School District 72, dated November 19, 1984
Thank you letter from Newport Community Consolidated School, dated November 19, 1984
Thank you letter from cgc Lake County Career Guidance Consortium, dated November 21, 1984
Luncheon invitation in honor of the armed forces, dated May 15, 1985
Proclamation, dated April 27, 1984

PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     19760329 - 19760414      COG
         Active: USN      19760415 - 19810517      HON
                  USN      19810518 - 19860327      HON

Period of Service Under Review :

Date of Enlistment: 19860328             Date of Discharge: 19920330

Length of Service (years, months, days):

         Active: 06 00 03 (Does not exclude lost time/total service 15 11 15)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 7 days
         Confinement:

Age at Entry: 28

Years Contracted: 6

Education Level: 13.5                               AFQT: *N/A

Highest Rate: ETC

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.8 (6)              Behavior: 3.8 (6)                 OTA: 3 .77 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon with three Bronze Stars; National Defense Service Medal; Navy “E” Ribbon; Humanitarian Service Medal; Navy Achievement Medal; Navy Commendation Medal; Second Good Conduct Award for Service ending 88JUN30; Coast Guard Special Operations Service Medal

*N/A – Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events :

860328: Reenlisted this date for a term of 6 years.

901126: Counseling and Assistance Center Screening Evaluation: Applicant referred by NADSAP as a result of a driving under the influence arrest. Applicant was determined to be an alcohol abuser and motivated for counseling. Referred to Navy Family Services Center for stress management counseling. Level II is contingent upon a medical officer’s evaluation.

910313: NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 07 March 1991, tested positive for cocaine.

910318: DAPA referred Applicant to CAAC for screening.

910319: Applicant to unauthorized absence at 0730 on 19 March 1991.

910319: Drug and Alcohol Abuse Report: Cocaine abuse, 1 to 3 times per month, ashore off duty. DAPA recommended separation via VA hospital. Clinical psychologist found Applicant not dependent and recommended separation via VA hospital. Commanding Officer recommended separation via VA hospital.

910320: Applicant directed to participate in a urine-testing program, consisting of a urine sample collected twice a week on a random basis starting 20 March 1991 through 15 May 1991.

910321: Applicant from unauthorized absence at 1400 on 21 March 1991 (2 days/surrendered).

910327: NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 22 March 1991, tested positive for cocaine.

910328: Medical Record: Diagnosis: Alcohol dependence, cocaine abuse, depressive disorder. Recommendation: Return to full duty, no mental disease, patient is considered responsible for his behavior, should be screened by DAPA for consideration of Level III ARC or extensive outpatient program.

910515: Applicant directed to participate in a urine-testing program collected twice a week on a random basis starting 15 May 1991 through 1 July 1991.

910520: Applicant to unauthorized absence at 0700 on 20 May 1991.

910524: Applicant from unauthorized absence at 1040 on 24 May 1991 (4 days/surrendered).

910621: NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 10 June 1991, tested positive for cocaine.

910625: NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 12 June 1991, tested positive for cocaine.

910719: NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 03 July 1991, tested positive for cocaine.

910730: Special Court-Martial:
Charge I: Violation of UCMJ Article 112a ( wrongful use cocaine)
Charge II: Violations of UCMJ Article 86 (unauthorized absence)
Specification 1: From 0730 on19 March 1991, until 1400, 21 March 1991
Specification 2: From 0600, 13 May 1991, until 0600, 14 May 1991
Specification 3: From 0700, 20 May 1991, until 1040, 24 May 1991
Additional Charge: Article 86 (unauthorized absence, 0730 - 1100 on 10 June 1991
Findings:        Charge I – guilty
                  Charge II (specifications 1, 2 and 3) – guilty
                  Additional Charge – not guilty
         Sentence: Confined for 30 days and reduced to E-6.
         CA action 910917: Sentence approved and will be executed, so much of the sentence extending to 30 days confinement is changed to 60 days restriction. The sentence as changed is approved and will be executed.

910905: NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 27 August 1991, tested positive for cocaine.

910923: Judge Advocates review of Special Court-Martial. Conclusions: The court-martial had jurisdiction, findings of guilty have not been disproven, the sentence was legal, and the accused submitted no allegations of error.

911018: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.

911018: Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

920207: An Administrative Discharge Board, based upon the preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense , that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

920228: Commanding Officer, Atlantic Fleet Headquarters Support Activity recommended to Chief of Naval Personnel the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: “ET1 V_ (Applicant) has no regard for the Navy’s policy on drug abuse. After his court-martial conviction on 30 July 1991, Petty Officer V_ (Applicant) tested positive for cocaine. This total disregard for Navy policy cannot be tolerated. Strongly concur with the administrative board’s recommendation that Petty Officer V_ (Applicant) be separated from the naval service with an other than honorable discharge.

920316: Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920320: Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920324: 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 19920330 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred. When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, 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 outweigh the positive aspects of the member's military record. T he Applicant’s service record documented a Special Court Marital for violations of the UCMJ, Article 86 (unauthorized absence, 3 specifications) and Article 112a (wrongful use of a controlled substance, cocaine) . The record also documented a civilian driving under the influence charge and five unadjudicated violations of the UCMJ Article 112a. Reference (A) defines each violation of the UCMJ Article 112a as the commission of a serious offense, the misconduct for which the Applicant was discharged. 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. Reference (A) dictates that separations under these conditions shall normally be characterized as under other than honorable conditions. Relief is not warranted.

Applicant’s issue 1: The Applicant contends that his discharge was inequitable based upon his severe depression, family problems, and that he voluntarily sought treatment. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. The fact remains that the Applicant repeatedly violated the Navy’s policy prohibiting the use of controlled substances. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Applicant’s issues 2 and 4: The Applicant contends that as a result of his documented professional competence and his two previous honorable discharges his service was inequitably characterized. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service. There are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis for administrative discharge and the characterization of a Sailor’s overall service. Processing for separation is mandatory for sailors who abuse illegal drugs. The Applicant’s service prior to his misconduct does not excuse him of responsibility for the misconduct that resulted in his discharge. Relief denied.

Applicant’s issue 3: The Applicant contends that his discharge is inequitable because of his recognition by military and civil organizations. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based 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 evidence of a drug free life, educational documents, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided 21 letters documenting his civil service during the time period of 1984 to 1987. T he Board recognized the Applicant’s significant contribution to the schools and children of the area surrounding the Great Lakes Training Center. However, the Applicant’s documented civil service was considered to be insufficient to mitigate his misconduct. Relief denied.

The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 – COMMISSION OF A SERIOUS OFFENSE.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for each violation of the UCMJ, Articles 112a.

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 | 2005_Navy | ND0500601

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