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NAVY | DRB | 2005_Navy | ND0500831
Original file (ND0500831.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND05-00831

Applicant’s Request
The application for discharge review was received on 20050413. 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. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was a small town kid who only wanted to serve his country. I was not as mature as I should have been and make some major mistakes after leaving home. I cannot explain my guilt as I try to train my 10 year old son to be a supporter of his military while my secret record hangs over my head. Please give my self respect back. I can e-mail you my resume to show my character has been outstanding since discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860312 - 860407  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860408               Date of Discharge: 910515

 Length of Service (years, months, days):

         Active: 05 01 07
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 87

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (5)              Behavior: 3.6 (5)                 OTA: 3.8

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, HSM, SSDR (W/BRONZE STAR)

 Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :
860310:  Applicant briefed upon and certified understanding of Navy policy concerning illegal use of drugs.
860409:  Applicant briefed on Navy's policy of drug and alcohol abuse.


880202:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
Award: Forfeiture of $250.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

880213:  Retention Warning: Advised of deficiency (Commanding Officer’s NJP on February 2, 1988 for a violation of the UCMJ, Article 112a, use of cocaine on or about January 8, 1988), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
880330:  Drug and Alcohol Abuse Report: On January 08, 1988, during a unit sweep, Applicant was found to be using cocaine ashore-off duty. CAAC found Applicant not dependent and recommends Level I Treatment.
         Commanding Officer’s action was to retain Applicant and recommends Level 1 treatment including NADSAP. NJP was the disciplinary action.
         Comments: Good potential for future naval service.

881230:  Unauthorized absence from USS FORT FISHER (LSD 40), located at NAVSTA, San Deigo, CA., from 0730, 88 DEC 30. Intentions unknown.

881231:  Surrendered on board USS FORT FISHER (LSD 40), located at NAVSTA, San Deigo, CA., at 2155, 88 DEC 31. Returned on board for disciplinary action.

890106:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, December 30, 1988 to 2155, December 31, 1988.
         Award: Restriction and extra duty for 7 days. No indication of appeal in the record.

890110:  Retention Warning: Advised of deficiency (Beginning pattern of misconduct as evidenced by NJP’s on February 2, 1988 and January 6, 1989), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 890716:  Applicant acknowledged frocking and volunteered to be frocked to the rate of PO3.
910329:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (amphetamine) on or about 91 March 05.
Award: Forfeiture of $500.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
910409:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NJPs of 29 March 1991 for wrongful use of a controlled substance (amphetamine) and 02 February 1988 for wrongful use of a controlled substance (cocaine); misconduct due to commission of a serious offense as evidenced by NJPs of 29 March 1991 for wrongful use of a controlled substance (amphetamine) and 02 February 1988 for wrongful use of a controlled substance (cocaine); and misconduct due to a pattern of misconduct as evidenced by NJPs of 29 March 1991, 06 January 1989, and 02 February 1988.
910409:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

910502:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

910513:  Commanding Officer, USS FORT FISHER (LSD-40) forwarded to Commander, NMPC, the administrative discharge package in support of request transmitted by USS FORT FISHER 252137Z APR 91, recommending discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct. Commanding Officer’s comments state ETSN M_ (Applicant) has no qualities, which might justify his retention in the Navy following his most recent drug abuse incident. He was well aware of the Navy’s policies concerning drug abuse and has already had one chance to redeem himself after his first drug incident. By his unauthorized drug use, he has willingly thrown away his chance for a productive naval career and has also wasted the advanced training invested in him. He can no longer be counted on to avoid further drug involvement. In view of his blatant disregard for the policies of the Navy concerning drug abuse and his unwillingness to refrain from drug use, I most strongly recommend that ETSN M_ (Applicant) be separated from the Naval Service under other than honorable conditions.

910515:  DD Form 214 states Applicant’s discharge date of 910515.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910515 under other than honorable conditions for misconduct due to drug abuse (A). 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 (B and C).

The Applicant contends that he was immature, made some major mistakes, but his conduct and his character post service have been outstanding. 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 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:

•         2 retention warnings:
o        For violations of the UCMJ Articles 112a, wrongful use of cocaine (19880213)
o        For violations of the UCMJ Articles 86, unauthorized absence and 112a, wrongful use of cocaine (19890110)
•         3 nonjudicial punishment proceedings for violations of:
o        Article 112a of the UCMJ, wrongful use of cocaine
o        Article 86 of the UCMJ, unauthorized absence
o        Article 112a of the UCMJ, wrongful use of amphetamine

A violation of Article 112a is considered a serious offense and typically warrants a punitive discharge if adjudged at a special or general court-martial. 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.

The NDRB advises the Applicant that 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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