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NAVY | DRB | 2005_Navy | ND0500712
Original file (ND0500712.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND05-00712

Applicant’s Request
The application for discharge review was received on 20050323. The Applicant requests his characterization of service received at the time of discharge changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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 drug abuse.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

“I respectfully request this discharged and legal proceedings be evaluated, I feel that my legal rights to representation were violated. I did not have legal counsel; nor did my command allow my to acquired a JAG attorney in defense of these charges, I was given orders to sign a blank DD 214 form and have no idea what to do. There for I feel this DD 214 form is improper. I request an upgrade to general under honorable and an RE-4 upgrade (DD 149 enclosed).”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

 “Propriety or Equity Issue(s):

Statement: In accordance with 32 CFR 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition

Mr. H_ (applicant) served in the US Navy from Jun. 20, 2000 to Nov. 5, 2003. He is a recipient of the National Defense Service Medal, the Sea Service Deployment Ribbon, and the Navy ‘E’ Ribbon.

Mr. H_ (applicant) has several non-judicial punishments in his record, including 6 specifications of unauthorized absence for a total of 36 days, one specification of making a false official statement, and one specification of malingering. He was convicted in civil proceedings of possessing marijuana on May 27, 2003 and of Driving Under the Influence on Feb. 24, 2003.

Mr. H_ (applicant) was administratively separated with an Other Than Honorable discharge. He waived his right to JAG counsel, to make a statement on his own behalf, to an administrative review board, and to representation by either a JAG or civilian attorney during legal proceedings in an administrative packet dated Sep. 26, 2003.

Mr. H_ (applicant)’s intent in applying to the NDRB is to upgrade his discharge so that he may re-enlist in the US Navy. In light of the continued recruiting problems of a post-9/11 military, it may be in the nation’s best interest to allow this veteran to re-enlist.

The Veterans of Foreign Wars’ 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 § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.

Applicant’s Remarks: As seen throughout this packet, I am doing everything possible to correct any errors on my part, I am working hard to get back in to the military. Your assistance on this is greatly appreciated.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Privacy Act Consent Form
Applicant’s DD Form 214
Letter to Senator J_ M_ dtd November 1, 2004
Letter from Senator J_ M_ dtd November 4, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19991203 – 20000619              
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000620             Date of Discharge: 20031105

 Length of Service (years, months, days):

         Active: 03 02 11 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 65 days
         Confinement:              none

 Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 38

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (4)              Behavior: 2.0 (4)                 OTA: 2 .83

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Navy “E” Ribbon.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

030116:  NJP for violation of UCMJ, Article 107: False Official Statement.
 Violation of UCMJ, Article 115: Malingering.
          Award: Forfeiture of $100 per month for 1 month, extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
030224:  Civil conviction: Norfolk General District Court, Driving Under the Influence (extracted from evaluation of 030228).

030226:  Vacation of suspended sentence of 030116 due to violation of UCMJ Article 92 (failure to obey order or regulation).

 030331:  Applicant to unauthorized absence at 1100 on 030331.

 030408:  Applicant from unauthorized absence at 0800 on 030408 (8 days/surrendered).
030410:  Applicant to unauthorized absence at 0730 on 030410.

 030415:  Applicant from unauthorized absence at 0730 on 030415 (5 days/surrendered).
030513:  Applicant to unauthorized absence on 030513.
030527:  Charged with possession of marijuana, City of Virginia Beach.
030527:  Applicant from unauthorized absence on 030527 (14 days/surrendered).
030610:  NAVDRUGLAB, JACKSONVILLE, FL, reported Applicant’s urine sample, received 030602, tested positive for THC.
030710:  Applicant to unauthorized absence at 0730 on 030710.

 030715:  Applicant from unauthorized absence at 0730 on 030715 (5 days/surrendered).
030721:  Applicant to unauthorized absence at 0730 on 030721.

 030722:  Applicant from unauthorized absence at 0730 on 030722 (1 day/surrendered).
030728:  Applicant to unauthorized absence at 0730 on 030728.

 030830:  Applicant from unauthorized absence at 0730 on 030830 (32 days/surrendered).

 030916:  Civil Conviction: City of Virginia Beach District Court for possession of marijuana.
          Sentence: Fined $350.00.

030925:  NJP for violation of UCMJ, Article 86 (6 specs): Unauthorized absence.
         Specification 1: UA from on or about 28 July 2003 until on or about 30 August 2003.
         Specification 2: UA from on or about 0730, 21 July 2003 until on or about 0730, 22 July 2003.
 Specification 3: UA from on or about, 10 July 2003 until on or about 15 July 2003.
Specification 4: UA from on or about, 13 May 2003 until on or about 27 May 2003.
Specification 5: UA from on or about, 10 April 2003 until on or about 15 April 2003.
Specification 6: UA from on or about, 31 March 2003 until on or about 8 April 2003
Violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Award: Reduction in rate to E-1, restriction and extra duty for 45 days. 25 days restriction suspended for 6 months. No indication of appeal in the record.

030925:  Administrative remarks: “He gave up his right to talk to lawyer prior to deciding whether to demand trial by court-martial in lieu of captain’s mast. He did not demand trial by court-martial in lieu of captain’s mast”. Signed by the Applicant.

030926:  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, misconduct due to drug abuse and misconduct due to a civilian conviction.
030926:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
031017:  Commanding Officer, Transient Personnel Unit, Norfolk, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to drug abuse and misconduct due to a civilian conviction. Commanding Officer’s comments: “AR H_ reported to Transient Personnel Unit, Norfolk on 3 March 2003 from HC-8 in a limited duty status. While at TPU, he commenced six periods of unauthorized absence and was convicted at the City of Virginia Beach District Court for possession of marijuana on 16 September 2003. On 28 May 2003, a service directed urinalysis was conducted and his sample tested positive for marijuana. AR H_ failed to appreciate the opportunities being afforded him by the Navy. His past performance, conduct and continuous history of unauthorized absence clearly demonstrate his lack of commitment and sense of responsibility towards the Navy and his shipmates. He has failed to abide by the rules, regulations and standards that govern the Navy. As evidenced by his UCMJ violations, AR H_’s behavior and misconduct clearly violates the Navy’s “zero tolerance” drug policy. Accordingly, I emphatically recommend AR H_ for immediate discharge from the Navy under Other than Honorable conditions.”

031024:  Commander, Navy Region, Mid-Atlantic, directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031105 by reason of misconduct due to drug abuse (A) with a 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 (B and C).

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 outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishments (NJP) for violations of UCMJ Article 107 (false official statement), Article 115 (malingering), Article 86 (unauthorized absence, 6 violations totaling 51 days) and Article 112a (wrongful use of a controlled substance). Furthermore, the record contains credible evidence that the Applicant was convicted in civilian court of driving under the influence and possession of marijuana. His violation of Article 92 (failure to obey an order) resulted in the vacation of a previously suspended punishment. The Applicant was convicted at nonjudicial punishment for a violation of UCMJ Article 112a (wrongful use of a controlled substance) substantiating the misconduct for which he was separated. There is credible evidence in the record that the Applicant used illegal drugs. 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. Processing for separation is mandatory for sailors who abuse illegal drugs. Separation under these conditions generally results in a characterization of service of under other than honorable conditions. Relief denied.

The Applicant contends that his discharge was improper because he was not provided legal counsel. The record confirms he was afforded the appropriate due process during the processing of his case and produced documentary evidence wherein the Applicant acknowledged and waived his right to consult with counsel. This issue is without merit. Relief denied.

The Applicant alleges he was ordered to sign a blank DD-214. Bearing the burden of presenting substantial and credible evidence to support his issue, the Applicant produced no evidence, nor is there evidence in the record to support his contention. The DD-214 properly documents the discharge directed by the separation authority, verifying the absence of impropriety. An upgrade of the Applicant's discharge is not warranted. Relief denied.

The NDRB is not authorized to change a reenlistment code. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or other Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. This issue is without merit. 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 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. The Applicant has not provided post service 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 his 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 V, Para 502, Propriety .

C. 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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