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NAVY | DRB | 2005_Navy | ND0500720
Original file (ND0500720.rtf) Auto-classification: Denied


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

ex-CMCN, USN
Docket No. ND05-00720

Applicant’s Request
The application for discharge review was received on 20050317. The Applicant requests that his 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027. 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 3 to 2 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 attached letter:

“Dear Review Board,

My name is D _ P _ O _. I began an enlistment in the United States Navy on July 2, 1997 . I took an oath and I was willing to die for my country if necessary . I had every intention of serving my country with honor, courage, and commitment . However, after nearly four years of faithful service, I made a tremendous mistake that changed the rest of my life . My mistake was a poor decision to experiment with marijuana . The terrible choice I made resulted in my other than honorable discharge from the military in 2001 . By experimenting with marijuana, I had disappointed my God, my family, my country, and myself.
I am aware that the individuals reading this letter may not share my religious beliefs . However, I must make it clear that I am a Christian and Christ is the number one priority in my life . I have been a Christian since I was a child but I went astray for many years . Being kicked out of the military was a huge wake up call for me . I had hit rock bottom . I realized I was ruining my life . I then began to change my life . I got back on track . I quit smoking, drinking, and cursing . I began going to church at First Baptist Church in Long Beach, MS . I began attending college at Mississippi Gulf Coast Community College . I have completed three semesters at the college and maintained an outstanding GPA (I have attached an official transcript from my school) . I am an active member at my church: I am part of an outreach program and I help with the Vietnamese ministries . I am not trying to sugar coat my life or pat myself on the back . I am a humble man and I am writing this letter with the most genuine honesty and sincerity . Jesus Christ teaches forgiveness . So, I asked for his forgiveness and I was forgiven.
My family was not as quick to forgive . When my family learned of my use of marijuana, they were greatly disappointed . It took years for me to prove to my family that I have changed my ways . Today, my family and I are close again, but I am still saddened when I think of all the pain and disappointment I caused them.
I will always be upset with myself because I let down my country . I let down the shipmates that I served with and I let down the civilians that I was supposed to be protecting! I am aware that I do not deserve an upgraded discharge . I am also aware that a n upgraded discharge does not excuse my past mistakes . However, I am begging this review board to upgrade my discharge so that I may become a schoolteacher . I feel God calling me to be a school teacher and I know I would make an excellent teacher . I have a strong desire to educate . I want to be a positive male role model for kids . I want to give back to my community . However, I know that I will never get a teaching job with this current other than honorable discharge on my record . Please consider my request.

Sincerely,
[signed]
D_ P_ O_”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character Reference ltr from Dr. L_ S_, from First Baptist Church, dtd February 8, 2005
Official transcript from Mississippi Gulf Coast Community College, dtd October 4, 2004
Character reference from G_ W_, Instructor of English, Mississippi Gulf Coast Community College, undtd
Character reference from P_ M_, dtd March 2, 2005
Character reference from CM3 C_ P. D_, undtd
Character reference from R_ K. R_, Employee Relations Counselor, Beau Rivage Hotel and Resort, dtd September 1, 2004
Letter from R_ A. R_, Executive Director, Phi Theta Kappa, undtd
Kroll drug test collection papers, dtd April 12, 2005
Character reference from G_ W_, Language Arts Department, Mississippi Gulf Coast Community College, undtd
Character/job reference from B_ F_, General Manager, B_ A_ Pontiac-GMC, Inc, undtd
Character reference from T_ A. B_, dtd January 11, 2005
Character reference from B_ D_, Minister of Education, First Baptist Church, dtd April 11, 2005
Harrison County Sheriff’s Department criminal background check, dtd April 6, 2005
Official transcript from Mississippi Gulf Coast Community College, dtd April 6, 2005
Cover letter from Physicians Care Plaza, dtd April 13, 2005
Kroll Drug Test Report, dtd April 13, 2005
Character reference from Applicant’s wife, N_ O_, undtd
Letter from The Blood Center, undtd
Kroll Drug Test Report, dtd June 3, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19961127 - 19970702      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19970703             Date of Discharge: 20010511

 Length of Service (years, months, days):

         Active: 03 10 09
         Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 84

 Highest Rate: CMCN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                                    Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Medal, Navy “E” Ribbon (2), Navy Rifle Marksmanship Ribbon (Sharpshooter), Sea Service Deployment Ribbon (2)
* Not Available


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 :

980110:  Charged with wrongfully consuming alcohol under the legal age of 21.

980219:  NJP for violation of UCMJ, Article 92: Fail to obey other lawful order by wrongfully consuming alcohol under the legal age of 21 years.
         Award: Forfeiture of $463 per month for 2 months, restriction for 60 days. Forfeiture of $463.00 suspended for 6 months. No indication of appeal in the record.

9807XX:  PREVENT alcohol abuse training.

000427:  Applicant escorted to NMCB 74 BAS by company HM due to Applicant’s inability to get out of bed. Medical report noted strong smell of alcohol on breath.

000531:  Competence for duty examination, NMCB 74 Medical. Applicant did not show up for work, found asleep in room. Smell of alcohol on breath. Blood test performed at 1013 resulted in 0.0107%.

000620:  Medical evaluation by Alcohol Rehabilitation Department, NMCB Butler, SACC. Referred by command for an alcohol related incident, which occurred on 1 st week in June 2000 for unauthorized absence. The Applicant also revealed this was 2 nd alcohol related incident. Applicant does not believe he has a drinking problem.
          SNM is scheduled for a case manager appointment at ARD, Camp Lester to determine the appropriate intensity of treatment needed. Maintain weekly meetings with command SACO. Attend two Alcoholics Anonymous meetings per week.

 000705:  Medical evaluation by Alcohol Rehabilitation Department, NMCB Butler SACC. Diagnosis: Alcohol dependence, physiological dependence. Recommend intensive outpatient treatment. Abstain from all alcoholic beverages. Attend at least 2-3 AA meetings per week. Abstain from all places where alcohol is the primary beverage of choice. Maintain weekly contacts with SACO and inform him of your treatment status.

000710:  Medical evaluation by Alcohol Rehabilitation Department, NMCB Butler SACC. Abstain from all alcohol. Meet with SACO weekly. Avoid all establishments whose primary purpose is to serve alcohol (clubs, etc). Attend all AA meetings as directed by your Case Manager. Complete all homework assigned by your Case Manager. Attend all scheduled appointments or have your SACO call ahead if unable to attend. Report also states, “attended the Alcohol Orientation and Education Group (ATOEG) as recommended. The individual participated in a group process and was presented with additional information on the alcohol treatment process. Furthermore, the patient was provided numerous opportunities to ask questions about organizational and individual treatment goals as well as requirements of the ARD/CSACC alcohol treatment program.”

 000719:  Medical evaluation by Alcohol Rehabilitation Department, NMCB Butler SACC. Diagnosis: A lcohol dependence with physiological dependence, early full remission. Treatment: Abstain from all alcoholic beverages. Attend at least 2 AA meetings per week. Abstain from all places where alcohol is the primary beverage of choice. Maintain weekly contacts with SACO and inform him of your treatment status.

 010511:  Separation physical: Item 21: Have you ever been arrested or convicted of a crime, other than minor traffic violations. Applicant marked “yes” and wrote possession of marijuana. Item 25: Physician’s summary, “being separated for use of illegal substances.”
010511:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: MILPERSMAN, Article 1910-146.


Service Record was missing elements of the summary of service and the administrative discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010511 by reason of misconduct due to drug abuse (A) 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 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 outweigh the positive aspects of the member's military record. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline. T he Applicant’s service was marred by nonjudicial punishment (NJP) for a violation of UCMJ Article 92 (failure to obey an order) . He was later discharged for illegal drug use, to which the Applicant admits guilt. Processing for separation is mandatory for sailors who abuse illegal drugs and generally results in a service characterization of less than honorable. Relief denied.
The record does not document NJP for the drug use that resulted in the Applicant’s administrative discharge or the administrative discharge process. Therefore, it is important to note that administrative discharge is a separate and distinct process from punitive proceedings such as NJP and court-martial. Administrative discharge processing is administrative in nature and not a form of punishment. The administrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate though parallel process. In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference (A). If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence. 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.
The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based on the issue of obtaining Veterans' benefits 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 purpose of enhancing educational, medical, housing or employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 provided 11 character/job reference letters, his latest transcript form Mississippi Gulf Coast Community College, two negative drug tests, and a negative criminal background check as documentation of his post service accomplishments. The Applicant also stated that he takes responsibility for his misconduct and is a good citizen who wants to give back to his community by becoming a teacher. The Board recognized and applauds the significant achievements of the applicant since his discharge. Nevertheless, it determined that the discharge was appropriate and that his evidence of post-service conduct was not sufficient to mitigate the misconduct for which he was discharged. Relief denied.

The Applicant remains eligible for and is encouraged to request a personal appearance hearing. The application must be 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 (additional drug testing, criminal background check, documentation of community service, continued education/teaching experience, drug treatment certificates, employment verification) and 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), 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 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 .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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