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NAVY | DRB | 2005_Navy | ND0501327
Original file (ND0501327.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AN, USN
Docket No. ND05-01327

Applicant’s Request
The application for discharge review was received on 20050809. 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 did not designate a 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:

“My discharge was inequitable because it was based on one isolated incident in 18 months of service which was 1 pos urinalyses which my social was not mine but was the same a my friends social & was refused another urinalyses-thus got an OTH, discharge I feel everyday mistake are made under simple errors such as my case which my urinalyses had my name on it but had someone else’s S.S. that had been mistaken for me. My records will show that I have never been in trouble for drugs, had never used drugs, my family goals were to excel in the military.”
Applicant’s Remarks: (Taken from the DD Form 293): If I wasn’t discharged I had planned on making the military a career. I had planned on using my G.I. Bill to further my education & making a transition form enlisted to officer status. It has been very hard for me physically & mentally after the discharge I received. Respectfully request a positive decision on my upgrade so I can further in life now. Thank you.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Only the service and medical records 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)     19920710 – 19920722               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920723             Date of Discharge: 19950125

 Length of Service (years, months, days):

         Active: 02 06 02
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 23

 Years Contracted: 4

Education Level: 12                                 AFQT: 38
Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.8 (3)     Behavior: 2.5 (3)                 OTA: 3. 13

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Battle ”E” Award.


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 :

920710:  Enlistment waiver granted for one non-minor misdemeanor (driving under the influence).

920710:  Additional enlistment waiver granted for one non-minor misdemeanor (larceny).

920710:  Additional enlistment waiver granted for three minor misdemeanors (drunk in public, disorderly conduct and drunk in public).

920710:  Additional enlistment waiver granted for alcohol abuse.

920730:  Applicant briefed on Navy's policy of drug and alcohol abuse.

920804:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities consisting of the following: 17MAY92 warrant for assault on a female in Danbury, NC. Charge dismissed as per phone call District Attorney C_ N_ Danbury, NC and MCPO W_ this date. 30MAY87 Charged with resisting arrest. Found guilty of escape and awarded fine of $156.00 (suspended), community service and 30 days in jail (suspended). However, any further deficiencies in performance or conduct may result in processing for administrative separation.
930122:  Violation of UCMJ, Article 109, Destruction of personal property. Offense was investigated by Naval Investigative Service. Member confessed to committing the crime and went to Executive Officer’s screening on 08 February 1993. Case was dismissed. Page 13 was issued for alcohol related incident and member attended Level III Alcohol Rehabilitation Treatment and completed one year of formal aftercare.

930303:  Drug/Alcohol Dependence Evaluation: Alcohol dependence, recommended for ARC.

930308:  Retention Warning: Advised of deficiency (Misconduct ICO Alcohol Abuse Incident #1. Intentionally destroyed property (slashed four motor vehicle tires) belonging to another service member of the Armed Forces while intoxicated. 0528 22 January 1993 at Naval Station Mayport Barracks 1587 parking lot while on liberty, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
930429:  Applicant completed program of rehabilitation for alcoholism at the Navy Alcohol Rehabilitation Center, Jacksonville, Florida.

941220:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, cocaine.
 Award: Restriction to barracks for 45 days, extra duty for 45 days, reduction to E-2. No indication of appeal in the record
941220:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of commission of a serious offense and misconduct due to drug abuse as evidenced by positive urinalisys results indicating cocaine usage.
941220:  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.
941223:  Commanding Officer, Helicopter Anti-Submarine Squadron recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, and misconduct due to drug abuse. Commanding Officer’s comments: “Since his arrival at HSL-42, Airman F_ (Applicant) has been a constant source of concern and an administrative burden of his entire chain of command. Despite numerous counselings and alteration of his working hours to accommodate two part-time jobs, his attitude and performance continued to decline. He is heavily in debt and recently refused more counseling for his situation. I am deeply concerned about the welfare of his young family and feel that he might be able to better support them if he were discharged from the Navy. His continued presence in the squadron has an overall negative effect on morale. Airman F_’s (Applicant) negative attitude and inability to acculturize to the Navy ways of life reflects his personal desire to be separated from the Navy. I recommend, and his record reflects that AZAN F_ (Applicant) is deserving of an Other Than Honorable discharge.”

950112:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

Undated:         No psychiatric or medical evaluation was deemed necessary however, member was offered and declined treatment through the Veterans Association [Extracted from CO’s message].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19950125 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 Board presumed regularity in the conduct of governmental affairs (E).

 The Applicant contends that his right to due process was denied. The applicant states that the urinalysis vial had his name, an incorrect SSN# (his friend), and his request to take another test was denied by the Command. The NDRB found no evidence in the record, nor has the Applicant produced any evidence, to support the contention that there was a procedural error in the urinalysis process. Although the Applicant’s service record is missing elements of the administrative discharge package, the Board presumed regularity in the conduct of governmental affairs and that the Applicant’s discharge was regular in all respects. 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. The Applicant’s service was marred by 2 retention warnings, 1nonjudicial punishment proceedings for violations of Articles 112a of the UCMJ. Furthermore, the record shows two unadjudicated violations of UCMJ Article 109 (Destruction of personal property) and Article 88 (fraudulent enlistment), which are classified as serious offenses and typically warrant 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 Applicant states his discharge was based on one isolated incident in “18 months.”
Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Board advises the Applicant that mandatory processing for separation is required for sailors who abuse illegal drugs. Relief denied.

The Applicant states that he had plans to use his GI Benefits. 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 any 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 112a (wrongful use of a controlled substance), Article 109 (Destruction of personal property) and Article 88 (fraudulent enlistment).

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 .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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