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


FOR OFFICIAL USE ONLY


ex-OSSR, USN
Docket No. ND05-01445

Applicant’s Request

The application for discharge review was received on 20050901. 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 20060512. 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“To whom this may concern:

I am submitting a request for an upgraded discharge to be reflected in my military service record and DD214. I currently (to the best of my knowledge) hold the status of “Under Other Than Honorable” conditions. Although I accepted this status upon discharge, I now realize that simply running from the situation solved nothing for me then and continues to haunt me almost a decade later. Positions in the civilian sector that I may be qualified to undertake are not as easily obtained and the option to re-enlist is now gone. I wish to correct both of these errors in my judgment.

As outlined in the admin board that I testified under; peer pressure, extenuating circumstances and overall poor judgment (fueled by stress and the naïve nature of my youth) sent me in the direction of wanting to end my once promising Naval Career. I completed the BOOST packet and had the full endorsement of the Commanding Officer. I was excited, proud and not to mention foolish and impressionable. Upon returning to San Diego from my WestPac tour, I purchased a vehicle with the money I had saved while out to sea. My first real purchase; I was glad to have not only a car but also something brand new. It was a great moment for me. However, it was short lived. This vehicle was later taken at gunpoint on Christmas Eve of 1996 while attempting to visit friends in L.A. I was devastated to say the least, that coupled with additional problems in my personal life began to affect my behavior and train of thought. Like many of the other young sailors on my ship (U.S.S. Duluth LPD-6) I turned to the use of illegal substances as an “escape”. In the long run this only added to my issues, making matters far worse then they already were. I tested positive for THC the very next day. When I explained my situation, holding nothing back about my personal issues and my professional issues, the Captain decided to retain me in the military. I had simply made a silly mistake and I would not repeat it. I gave him my word and I did not. I served my 45/45 day restriction, reduction in rank to E-1 and ½ months pay for two months as sentenced in Captain’s Mass. There was one problem with this decision. I should have been moved to another command. As other sailors began to notice I was not discharged, the problems REALLY began. It was pretty big news that (frocked) P.O. P_(Applicant) “popped” for THC. I was the same sailor that wrote PQS for the SPA-25G, was Training PO for the Operations Department, and a shoe-in for the BOOST program. The rumors began. Per my peers, I was a snitch and not to be trusted. None of them knew the actual truth. I could not go around the ship and discuss my details concerning the captain’s decision. Many of the sailors that made these accusations had friends that were discharged prior to me for illegal substance abuse and blamed me for their being caught and felt I at least deserved the same fate. I began to ask the CMC (repeatedly, almost daily) for a re-assignment, or TAD, but he said his hands were tied. Looking back, I should have tried to stick it out, to fight, but at the time I had been through so much. Not to mention I had lost my only grand mother in the midst of all this. I simply could not take it any more. The threats of bodily harm, rumors and lies overtook me, resulting in me re-directing the threats to others in my department. I lost all control and made some very unwise decisions leading to my ultimate dismissal. I ask for your assistance in not allowing these un-thought out choices affect the remainder of my life.
Whatever decisions the board makes, I hope for a favorable and understanding one. Thank you for your time and hopefully favorable consideration.

[signed]
I_ J. P_(Applicant) ”

Documentation

Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19930304 - 19940912      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19940913             Date of Discharge: 19971125

Length of Service (years, months, days):

         Active: 03 02 13
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 79

Highest Rate: OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.7 (3)                       Behavior: 3.0 (3)                 OTA: 3 .22

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Armed Forces Expeditionary Medal, Navy “E” Ribbon, Sea Service Deployment Ribbon.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events :

970205:  Unauthorized absence, page 13 entry. [Extracted from Report and Disposition of Offenses.]

970405:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 970328, tested positive for THC.

970424:  Applicant’s letter to Commander.

970430:  NJP for violation of UCMJ, Article 112a – wrongful use of a controlled substance
         Specification: In that OS3 I_ J. P_(Applicant) USN, did, aboard USS DULUTH, on or about 28 Mar 97, wrongfully use marijuana, a schedule I controlled substance.
         Award: Forfeiture of $553.50 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

970502:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of Misconduct-drug abuse as evidenced by your conviction at Commanding Officer’s non-judicial punishment on 30 April 1997 for VUCMJ 112a-Wrongful use of a controlled substance and as evidenced by all drug incidents in your current enlistment.]

970502:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

970724:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct-drug abuse, and by a vote of 2 to 1 recommended retention.

970813:  Commanding Officer, USS DULUTH (LPD 6) recommended administrative separation by reason of misconduct-drug abuse. Commanding Officer’s comments: “It is my opinion that the results of the Administrative Separation Board were correct and just when they decided that OSSN P_(Applicant) should be retained in the Naval Service. While I fully support the Navy’s “Zero Tolerance” policy, the performance of OSSN P_(Applicant) and the extenuating circumstances of this case provide enough significant justification for this single exception. OSSN P_(Applicant) has been a consistently superior performer and a valuable member of my crew. It is my judgement that this incident represents an anomaly vice a pattern of conduct for an otherwise exemplary Sailor. At the first sign that this judgement is incorrect, rest assured that OSSN P_(Applicant) will be held accountable to the maximum extent. Most strongly recommend retention in the Naval Service.

971029:  NJP for violation of UCMJ, Article 86 Unauthorized absence.
Violation of UCMJ, Article 91: Disrespect to a petty officer (3 specs), damaging, destroying, or losing military property
Violation of UCMJ, Article 113 Misbehavior of sentinel
Violation of UCMJ, Article 128 Assault upon a petty officer
         Award: Forfeiture of $450.45 per month for 1 month, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

971106:  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 the commission non-judicial punishment on 29 October 1997 for VUCMJ Article 113-Misbehavior of a sentinel, VUCMJ Article 91-willful disobedience of a petty officer, VUCMJ Article 108-willfully damaging, destroying or losing military property and Article 128-Assault upon a petty officer and as evidenced by all other convictions in your current enlistments. [Extracted from Commanding Officer’s message dated 970831.]

971106:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights. [Extracted from Commanding Officer’s message dated 970831.]

971107:  Commanding Officer, USS DULUTH recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: “OSSR P_(Applicant)’s incompatibility with naval service is clearly evident by his frequent disciplinary problems. He has no potential for future naval service. Recommend separating member, with discharge characterization of other-than-honorable.”

971113:  COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

971118:  Applicant found qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971125 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 is seeking an upgrade of his discharge to “correct errors in his judgement” while he was in the service. 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 86, 91 (3 specs) , 112a, 113, and 128 of the UCMJ marred the Applicant’s service. Certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86, 91,112a, 113, and 128 are considered 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 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 14, effective
03 Oct 96 until 971212, Article 3630605, 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 86 (Unauthorized absence), Article 91(disrespect to a petty officer), Article 112a (wrongful use of a controlled substance), Article 113 (misbehavior of sentinel), and Article 128 (assault upon a petty officer) .

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