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NAVY | DRB | 2005_Navy | ND0500930
Original file (ND0500930.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND05-00930

Applicant’s Request
The application for discharge review was received on 20050505. The Applicant requests the Discharge 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 20050831. 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 and reason for 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 K_ E_ D_ made a young and terrible mistake while I was aboard the U.S.S. ABE LINCOLN. I tried cocaine on a drunk and idiotic night I was living in a house in Bremerton, WA with abound 6 other sailors from my ship. There would be extensive drinking in the house just about every night. The night I did cocaine for my first time was a Saturday night and I had taken 2 or 3 lines than called it a night after that. The next day we had gone to the Bremerton bowling alley with my friends from the ship we had done some heavy drinking that night. Eventually my friends had some problems with another civilian in the bar area, so they went outside to fight. I followed my friends to make sure he wouldn’t get hurt or hurt the man he was fighting. When I went out there, there was 6 of his friends with him and they went after me, so I defended myself and started punching. As soon as I knew it I hit a security guard on accident because it was so dark. As soon as I realized it was a security guard I stopped and put my hands up and let him arrest me. The master-at arms for my ship than took me and my friends into custody. The ship gave me a urine alysis and I unfortunately failed.”

 Item 16. REMARKS:
“The reason I feel I should have my discharge changed; well for one I don’t use any drug even (cocaine) that was a one time thing that I will never do again. And the biggest contributing factors was alcohol which I had quit as well. Since I was discharged I got a job at Inter-tel in Reno, NV, I have worked there since July of 04 and still do. I am one of the top producers at my work. I also have been going to gym everyday because I am taking a (college course) intro to fire fighting at a community college locally. After I complete the course I will attend the Reno, NV fire academy. In Jan 06. I train everyday and feel I have grown up a lot from this experience. I had to also attend AA meetings and NA meetings last July/Aug. I feel and so do my counterparts and associates feel I had just made a dumb mistake and feel I want to contribute to society as any hard working American shall do.” (Taken from the DD Form 293.)

 Documentation
Only the service record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20020925 – 20030225               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20030226             Date of Discharge: 20040628

 Length of Service (years, months, days):

         Active: 01 04 03
         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 (GED)                                   AFQT: 53

 Highest Rate: AOAA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (1)     Behavior: 1.0 (1)        OTA: 1 .50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Navy Pistol Marksmanship Expert Medal


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 :

030226:  Signed United States Navy Illicit Behavior Screening Certificate containing the Navy’s policy on drug usage.
030715:  Joined USS ABRAHAM LINCOLN.

040408:  Applicant’s urine sample tested positive for cocaine at NAVDRUGLAB, San Diego, CA. [Note: Extracted from message R 141419Z APR 04 NAVDRUGLAB SAN DIEGO CA REPORT OF URINE SAMPLE TESTS (OPNAV REPORT 5350-4)//UNCLAS.]

040429:  Civilian Conviction: Violation of Revised Code of Washington 66.44.2702a (Minor in possession and/or consumption of alcohol) and violation of Revised Code of Washington 9A.36.041A (Assault 4, domestic Violence). [Offenses committed on 040315.]
 Sentence: $1000.00 court cost, $150.00 DUI recovery cost, $100.00 contribution to MADD, 8 hrs. community service, no possession/consume alcohol, DUI victim panel, chemical dependency treatment, no contact with Bremerton Lanes or M_ B_, no criminal violations.
 Conditions of Sentence: Prosecution agrees to move to dismiss with prejudice the charges at a hearing to be scheduled not before 2 years.

 040531:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, in that Aviation Ordnanceman Airman Apprentice K_ E. D_, U.S. Navy, USS ABRAHAM LINCOLN, on active duty, did, at or near Bremerton, Washington, on or about 15 March 2004, wrongfully use cocaine.
          Award: Forfeiture of $694.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. No indication of appeal in the record.

040610:  Commanding Officer, USS ABRAHAM LINCOLN (CVN 72) notified Applicant of intent to recommend discharge with a under other than honorable conditions by reason of misconduct civilian conviction and misconduct drug abuse.

040610:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040612:  Commanding Officer, USS ABRAHAM LINCOLN, recommended to COMCRUDESGRU THREE the Applicant’s discharge with a under other than honorable conditions by reason of misconduct civilian conviction and misconduct drug abuse. Factual basis for this recommendation were involvement with civil authorities and NJP for wrongful use of cocaine. Commanding Officer’s comments: “I recommend characterization of service as other than honorable. Alcohol was a factor in drug use.”

040624:  GCMCA [ COMCRUDESGRU THREE] 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 20040628 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. 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 desires an upgrade of characterization of service to General (Under Honorable Conditions) because he does not use drugs or consume alcohol, and he has attended AA and NA meetings. He further informs the Board that he has been working for the same company since his discharge. His desire is to contribute to society as a hard working American. The Board reminds the Applicant that during his one year and four months in service, he received civilian convictions for minor in possession and/or consumption of alcohol and assault. Additionally, the Applicant received nonjudicial punishment for violation of UCMJ Article 112a Wrongful use of a controlled substance (cocaine). T o permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. While 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 Navy, the Board 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. Verifiable proof of any 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. Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the offense for which he was discharged. No relief is granted on this basis.

The Board noted the Applicant’s intent to attend the Reno, NV Fire Academy after college. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief on this basis is denied.

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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