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NAVY | DRB | 2005_Navy | ND0501304
Original file (ND0501304.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. ND05-01304

Applicant’s Request
The application for discharge review was received on 20050727. The Applicant requested that his characterization of service be changed to honorable. On the DD form 293 the Applicant requested a personal appearance hearing and did not designate a representative. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. 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

Applicant’s issues, as stated on the attached letter:

“Dear Sir or Madam,

Thank you for taking the time to review my discharge change request. (For re-entry if possible.) I am currently a Security Officer for the San Felipe Del Rio Consolidated Independent School District. In February 4, 2006 I will complete 4 years with this employer. From 1999 to 2001 did not have a steady job/income until I was hired by the S.F.D.R.C.I.S.D. I have tried to get into the Border Patrol and I was even in the Police Academy. I passed all their entry exams with no problems but 2 weeks into the Police Academy I was told I could no longer attend because of the type of discharge from the military. I would like to go back into our great military, if possible and make it a career. I would like to serve our great country once more and I would not hesitate my orders if I were sent anywhere in the world. Anyone who asks me about going into the military I tell them that is one of the best decisions they could make. I know I made a bad decision in the past, I am sorry, but I was young (just turned 18) and I wasn’t fully aware of the responsibility I had towards our great country. All I wanted to do at that time was to have fun and meet people since I didn’t know anyone in Puerto Rico. One thing is for sure, that I learned my lesson because that decision made a very hard impact on my life. It is very difficult to get a good career especially since I wanted to get into law enforcement. I don’t smoke, drink and I especially don’t do any type of drugs. I now have 2 daughters and I pay my child support. I see them often. I am a very responsible father. I even put my own business to try and give my family a better life. It worked for 2-3 months but I didn’t have sufficient funds to continue. All I am asking for is a second chance to re-enter our great military or at least in the civilian life with a different discharge. I know I made a mistake in the past but I have learned so much from it. Please don’t make this a life long sentence. We sometimes need a second chance to earn back our trust and respect. There are so many individuals that for whatever their reason they don’t go into the military and others that run away once they are in the military but I will join our nation’s military and I won’t run away for any reason. I know it is difficult to make a decision by just reading a paper with words but I know I will not disappoint you Sir or Madam, please just give me a second chance. I thank you once more for taking your time in reviewing my discharge change request.

Thank You,
God Bless.
(social security number deleted)
(Signed) M_ A_ S_ Jr. (Applicant)
Date 7/20/05”



Documentation
The Applicant submitted the following additional documentation for the Board’s consideration in addition to the official service and medical records:
Applicant’s DD Form 214 (Member 1 and 4)
Picture of Applicant
Aviation Ordnanceman, certificate of completion, dated March 11, 1999
Newspaper clipping (undated)
Character Reference letter from Sergeant K_ C_, Training Coordinator, Val Verde County Sheriff’s Office (undated, unsigned)
Character Reference letter from J_ F. P_, Assistant Principal, San Felipe Del Rio Consolidated Independent School District (undated)
Character Reference letter from R_ E_, Assistant Principal Del Rio High School (undated)
Character Reference letter from D_ B_, Principal of Del Rio High School (undated)
Character Reference letter from C_ M_, Athletic Director, San Felipe Del Rio Consolidated Independent School District (undated)
Character Reference letter from B_ S_, School Resource Officer, Val Verde County (undated)
Character Reference letter from C_ G. S_, Head Counselor of Marion Russell Middle School (undated)
Character Reference letter from P_ A. M_, San Felipe Del Rio Consolidated Independent School District (undated)
Texas sales and use tax permit issued to the Applicant for “Extreme Soundz”
Advertisement of 1 Annual car show, held on April 17, 2005
Character Reference letter from Dr. Lonnie Green Elementary Career Day Committee, A_ O_, Principal; L_ R_, Assistant Principal; and D_ M_, counselor, dated April 29, 2003
Certificate of appreciation from Dr. Lonnie Green Elementary, dated March 28, 2003
Certificate of appreciation from 12 th Annual H-E-B Feast, dated November 21, 2004
Safety award certificate from Del Rio High School, dated September 18, 2003
Understanding, combating and surviving terrorism, certificate of completion, dated March 19-21, 2003
Letter from Texas Commission on Private Security, dated May 25, 2001
Certificate of completion for level 1 training, issued by T. I. S. Inc., dated December 07, 2000
Certificate of completion for level 2 training, issued by T. I. S. Inc., dated December 07, 2000
Orientation certificate from Gary Job Corps Center, (undated)
Certificate of participation in the O. E. P. training program, dated June 26, 1998
Certificate of achievement, social skills training, Job Corps, dated June 19, 1998
Certificate of completion for anti-sexual harassment training, dated June 19, 1998
Certificate of completion from Gary Job Corps Center for intergroup relations cultural awareness program, dated July 10, 1998
Certificate of merit from Texas Education Foundation, dated August 13, 1998
Certificate of academic achievement from Academic Division Gary Job Corps, dated July 14, 1998
Certificate of High School Equivalency, dated July 15, 1998
Official report of test results from Texas Education Agency (undated)
State of Texas Academic Achievement Record (undated)
Dantes Score Report, dated September 13, 1999
Applicant’s certificate of birth (2)
Information on ASVAB test
Application for the Evaluation of Learning Experiences during military service, dated September 08, 1999
Five pages from Applicant’s service record
Service member military credit recommendation report, dated September 08, 1999 (2 pages)
Letter from Applicant (undated, unsigned)
Letter to Applicant from Minneapolis Hiring Service Center, dated August 16, 2005
Border Patrol Agent online application, dated July 19, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980930 - 19981108      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19981109             Date of Discharge: 19990924

 Length of Service (years, months, days):

         Active: 00 10 15 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              49 days

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

 Education Level: 10 GED                    AFQT: 53

 Highest Rate: AOAR

 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): None
* 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 :

980930:  Pre-service waiver granted (GED/underage).

990423:  Violation of the UCMJ, Article 80 (attempt) by attempting to wrongfully possess about 2 (two) doses of lysergic acid diethylamide (LSD) .

990621:  The Applicant agreed to plea guilty to the charge of “ attempt to wrongfully possess about 2 (two) doses of lysergic acid diethylamide (LSD)”, a violation of the UCMJ, Article 80.

 990623:  Special Court Martial:
         Charge: Violation of the UCMJ, Article 80 [attempt, attempt to wrongfully possess about 2 (two) doses of lysergic acid diethylamide (LSD)].
         Findings: To charge and specification thereunder, guilty.
         Sentence: Confinement for 75 days, forfeiture of $400 per month for 2 months.
         CA 000131: Sentence approved and ordered executed.

 990623:  Applicant found fit for confinement. Applicant to confinement.

990712:  Applicant notified of the intended recommendation for his discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.
990712:  Applicant advised of rights and having consulted with counsel, elected to waive all rights with the exception of the right to obtain copies of the documents used to support the basis for the separation.
990712:  Commanding Officer, Transient Personnel Unit, Jacksonville, recommended to Commander Naval Personnel Command the discharge of AOAR S_ (Applicant) under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense. Commanding Officer’s comments: “AOAR S_(Applicant) agreed to waive his right to a hearing before an administrative discharge board. Based on the seriousness of the offense, I recommend AOAR S_(Applicant) be separated from the naval service with an Other Than Honorable discharge.”

 990802:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse. Because AOAR S_’s (Applicant) Special Court Martial did not impose a punitive discharge the Secretary’s approval for an other than honorable characterization of service is required.
990810:  Applicant released from confinement and returned to full duty.
990909:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
990916:  Commander Naval Personnel Command directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990924 by reason of misconduct due to drug abuse (A) with a characterization of service as under other than honorable conditions. After a thorough review of all available the 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. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. The Applicant’s service record documented a Special Court Martial for a violation of the UCMJ, Article 80 (attempt to purchase LSD). Processing for separation is mandatory for sailors who abuse drugs, the misconduct for which that Applicant was discharged. The evidence of record clearly documents the Applicant’s blatant disregard for authority and does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separations under these conditions generally result in an under other than honorable conditions characterization of service. The Board could discern no impropriety or inequity. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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.

The Applicant contends that since his separation from the naval service he has led a productive life, has a family, is employed, does not drink or smoke and does not use illegal drugs. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based 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 provided nine letters from his employer, supervisors and co-workers, three letters documenting his volunteer service and eleven certificates of training in support of his post service claim. T he Board determined the Applicant’s post service conduct to be insufficient to mitigate his misconduct while in the Naval service. Relief 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), Change 24, effective 20 May 99 until 26 March 2000, 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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