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NAVY | DRB | 2005_Navy | ND0501177
Original file (ND0501177.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND05-01177

Applicant’s Request
The application for discharge review was received on 20050706. The Applicant requested that his narrative reason for separation be changed to “At Convenience of Gov’t.” The Applicant requested a documentary discharge review. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year limit for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. The Applicant did not respond. Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209. 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 and reason for discharge shall not change. The discharge shall remain Under Honorable Conditions (General) 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 am asking for my discharge reason to be changed from mis-conduct “Drug Abuse”, to at convenience of the government. I feel it is only fair because I was court mar haled, Spent time in the brig, Paid all fines, lost top secret Security Clearance, & was generally humiliated. The Navy held administrative hearings aboard ship and the officers made a decision to keep me in the Navy. I was a 4.0 Sailor before I made that terrible mistake that cost me my Naval Career. So when I got discharge orders after that I was completely Shocked & dismayed. No one could help me with any answers, except at the time, U.S.N. was Cutting back personnel by 40%. They were discharging guys for all kinds of strange reasons. I had no warning or say in the matter. I was fired & Dumped by the Navy and left in a strange city (San Francisco) homeless & Jobless. Please consider changing my discharge to “At convenience of the Government” because it is true. I served my punishment and was forgiven by the Navy. They promised me a second chance before the 40% cutback. Now at this point in my life, I’m 34, working taxes paying citizen with 2 kids and a wife. The wording on that discharge is affecting me in negative ways It is now 13 yrs later, I feel I’ve lived with the negative aspects Long enough. Please change it. Thank You.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890518 – 19890523               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890521             Date of Discharge: 19900726

 Length of Service (years, months, days):

         Active: 01 01 09
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              23 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 11 (attended 7 months of 12 th grade)    AFQT: 52

 Highest Rate: OSSR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)     Behavior: 1.0 (1)                 OTA: 2.1 (2)
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None



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

UNDER HONORABLE CONDITIONS (GENERAL)/ Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

890524:  Applicant briefed on Navy's policy on drug and alcohol abuse.

90xx09:  Drug and Alcohol Abuse Report a result of the Applicant testing positive during a random urinalysis test. The Applicant abused cocaine at least 1-3 times per month. Found the Applicant dependent and not eligible for counseling, education, or rehabilitation. DAPA recommends separation.
         Medical Officer’s Evaluation: Found Applicant dependent, amenable, and eligible for counseling, education, or rehabilitation. Recommended Level III treatment.
 Commanding Officer’s Comments: “SNM was evaluated by the Medical Officer to be dependent on a alcohol and drugs. He shows no potential for further productive Military Service and is being processed for administrative separation. He will be afforded treatment via the VA if discharged”.
900228:  Summary Court-Martial for violations of UCMJ, Article 107 (false official statement), Article 112a (wrongful use of cocaine), and Article 134(wrongfully and falsely alter an armed forces ID card).
          Findings: Guilty.
          Sentence: Forfeiture of $482.00 pay per month for 2 months. To be confined for a period of 30 days.
         CA action 900301: Sentence approved and ordered executed. The Brig, USS CARL VINSON (CVN 70) is designated as the place of confinement.
        
900301:  Commander Carrier Group Three Judge Advocate, review of summary court martial. The court had jurisdiction. The charges were legal. No allegations of error were made. No corrective action required.

900309:  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 drug abuse.

900322:  Applicant advised of rights and having consulted with counsel, objected to the separation and elected to appear before an Administrative Discharge Board.

900402:  An Administrative Discharge Board, based upon the preponderance the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse. The Board recommended 3 to 0 that the Applicant be retained.
900429:  Commanding Officer, USS CARL VINSON (CVN 70), recommended to Commander, Naval Military Personnel Command that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “OSSR W_ (Applicant) has no potential for future military service due to his wrongful use of cocaine. OSSRW_ (Applicant) is a detriment to good order and discipline on board this command. Notwithstanding the boards recommendation, I recommend that OSSR W_ (Applicant) be discharged from the Naval Service by reason of misconduct due to drug abuse as evidenced by his wrongful use of cocaine and that the discharge be under other than honorable conditions.”

900626:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), that the Applicant be separated by reason of misconduct due to drug abuse and his characterization of service be General (Under Honorable Conditions). SECNAVINST 1910.4A states that a member who lacks potential may be separated for misconduct do to drug abuse. Therefore it is recommended that OSSR W_ (Applicant) be separated by reason of misconduct due to drug abuse. The action of the Administrative Board precludes characterization of other than honorable. Therefore, based on the service record and the findings of the Board, a characterization of service as General (Under Honorable Conditions) is recommended.

900712:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the recommendation for discharge as General (Under Honorable Conditions).
900713:  COMNAVMILPERS , directed the Applicant's discharge as under honorable conditions (general) by reason of misconduct due to drug use.

900724:  Applicant declined VA Hospital in-patient treatment for alcohol and drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19900726 by reason of misconduct due to drug abuse (A and B) with a service characterization of under honorable conditions (general). 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).

Applicable regulations dictate that processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged. The Applicant’s service record documented a summary court martial conviction for violations of the UCMJ, Article 107 (false official statement), 112a (wrongful use of a controlled substance, cocaine), and Article 134 (altering armed forces ID card) . 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. Separation under these conditions generally results in an under other than honorable conditions characterization of service. The Board found no inequity or impropriety in the Applicants discharge.

The Applicant requested that his narrative reason for separation be changed to “At the convenience of the government”. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. In this case, the Applicant was discharged as a result of his violation of the UCMJ, Article 112a (drug abuse). For the edification of the Applicant, the Naval Military Personnel Manual does not permit “At the convenience of the government” as an authorized narrative reason for separation. Convenience of the government is indeed a reason for separation. However, the Applicant does not meet any of the convenience of the government criteria such as pregnancy, personality disorder, or defective enlistment. “Misconduct – Drug abuse” is the appropriate narrative reason for use, possession, distribution, or manufacture of a controlled substance as directed by the Naval Military Personnel Manual Article 3630620. No other narrative reason for separation could more clearly describe why the Applicant was discharged. To change the narrative reason for separation would be inappropriate. Relief denied.

The Applicant contends that his discharge was unfair as he had paid his fine and served the brig time awarded by the court martial . The Board inferred from this statement that the Applicant considers his discharge as punishment. For the edification of the Applicant, the administrative discharge process is separate and distinct from punitive proceedings such as NJP and court-martial. Administrative discharge processing is administrative in nature and not a form of punishment. The a dministrative discharge process may be initiated prior to, following, or even in the absence of NJP or court martial as a completely separate process. The Applicant’s issue is without merit. Relief not warranted.

The Applicant contends that his discharge is affecting him in negative ways. 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 employment, housing, medical or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s issue is without merit. Relief is not warranted.

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 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 stated in his letter that he is now a working, tax paying citizen, who is married with two children, however he provided no post service documentation for the Board’s consideration. Based on insufficient evidence and lack of sufficient post service factors, relief denied.

Based on the statutory time limit of 15 years from the date of discharge, 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 service, if he desires further review of his case.


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. 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 violations of the UCMJ, Articles 107, 112a, and 134.

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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