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NAVY | DRB | 2005_Navy | ND0501323
Original file (ND0501323.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT


 FOR OFFICIAL USE ONLY

ex-ENFN, USN
Docket No. ND05-01323

Applicant’s Request
The application for discharge review was received on 20050804. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. 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 by reason of misconduct due to commission of a serious offense.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“JOB PURPOSES, BENEFITS AND TO BE ABLE TO GET A BETTER FUTURE FOR MYSELF AND FAMILY. I MADE A MISTAKE AND WOULD LIKE TO CORRECT IT BY HAVING THIS TYPE OF DISCHARGE I’M LIMEDINGS THAT I KNOW THAT I CAN DO BETTER. PLEASE RECONSIDER MY APPLICATION PLEASE THANK YOU. I WAS 23 YRS OLD AND I THINK I MADE A MISTAKE THAT’S BEEN AFFECTING MY LIFE EVER SINCE I GOT KICKED OUT OF THE NAVY FOR THC. I ADMIT THE WORST MISTAKE OF MY LIFE. I WOULD LIKE TO ASK RECONSIDERATION OF MY LAST DISCHARGE AND ASK FOR IT TO BE UPGRADED TO AN HONORABLE DISCHARGE. I’VE ACTUALLY BEEN LIMITED IN JOB WISE AND I THINK THAT BECAUSE OF MY ACTIONS IV’E NOT ONLY BEEN CHEATING MYSELF BUT ALSO MY FAMILY. I PRAY AND ASK YOU TO PLEASE UPGRADE MY LAST DISCHARGE BECAUSE I HAVE PLANS TO PROBABLY BECOMING A N.Y.P.D. OR CORRECTIONS OFFICER. THANK YOU.”

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            19900807 – 19901211               COG
         Active: USN                        19901212 – 19920721               HON

 Period of Service Under Review :
Date of Enlistment: 19920722             Date of Discharge: 19941109

 Length of Service (years, months, days):

         Active: 02 03 18 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 1 day
         Confinement:              None

 Age at Entry: 21
Years Contracted: 4

Education Level: 12                                 AFQT: 36

 Highest Rate: EN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (5)     Behavior: 3.5 (5)        OTA: 3 .6

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Joint Meritorious Unit Award (2); National Defense Service Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events :

920722:  Reenlisted this date for a term of 4 years.

921012:  Civil Conviction: San Diego, CA for violation of DUI.
 Sentence: $1100.00 Fine and Probation.

 940304:  NJP for violation of UCMJ, Article 111: Civilian Conviction for DUI.
         Award: Forfeiture of $100 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-3 (suspended 6 months). No indication of appeal in the record.

941014:  NJP for violation of UCMJ, Article 86: Unauthorized Absence from unit, October 12, 1994 until October 13, 1994.
 Award: Forfeiture of $150.00 pay per month for 1 month, restriction and extra duty for 25 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

 941014:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
941018:  Applicant notified of intended recommendation for discharge with the under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis on 25 Sep 94 for THC, pattern of misconduct and commission of serious offense as evidenced by NJP of 04 03 94 for VUCMJ Art 111, Civilian Conviction for DUI on 12 Oct 94 and CO’s NJP on 14 Oct 14, 94 fro VUCMJ Art 86.

941019:  Applicant was seen by a Medical Officer on 941019 and was diagnosed not alcohol dependent and not drug dependent.
941019:  Commanding Officer, USS ESSEX, recommended discharge under other than honorable conditions by reason of misconduct dude to drug abuse, pattern of misconduct and commission of serious offense. Commanding Officer’s comments: “EN3 D_ (Applicant) has absolutely no potential for further naval service and is most strongly recommended for separation with characterization of discharge as other than honorable.”

941028:  BUPERS, directed the Applicant's discharge with under other than honorable conditions by reason of commission of serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19941109 by reason of misconduct due to commission of a serious offense (A and B) 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 (C and D).

The Applicant states he made a mistake when he was 23 years old and would like to correct it. The NDRB acknowledges the Applicant's regret in his choice to abuse (use) drugs and his realization that he displayed a lack of judgment at the time he was in service. However, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of the Applicant’s case. Relief on this basis is not warranted.

The Applicant is requesting an upgrade of his discharge characterization to honorable. The NDRB advises the Applicant that 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 or performance of duty outweigh the positive aspects of the member’s military record. Two nonjudicial punishment proceedings for violations of Articles 111 (civil conviction for DUI), Article 86 (Unauthorized absence), and an unadjudicated violation of Article 112a (wrongful use of a controlled substance) marred the Applicant’s service. 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 Applicant seeks an upgrade for employment purposes and benefits to improve his quality of life and that of his family. The Board advises the Applicant that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely 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 sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.





The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)


 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

 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 violation of the UCMJ, Article 111 (civil conviction for DUI), Article 86 (Unauthorized absence), and Article 112a (wrongful use of a controlled substance) .
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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