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NAVY | DRB | 2005_Navy | ND0501474
Original file (ND0501474.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-01474

Applicant’s Request
The application for discharge review was received on 20050908. 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 Private Representative as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060517. 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 drug abuse.



 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

 Issues submitted by Applicant’s counsel ( private representative):
“Issue 1: I believe Mr. D_ (Applicant)’s remorse over his youthful, impetuous, misguided mistakes must be weighed in his favor when the board considers his application for changing his discharge from Other Than Honorable Discharge to Honorable Discharge. I tend to identify with R_ (Applicant)’s situation because of my own personal history. Before I entered the United States Marine Corps where I became a rifleman/ammunition bearer in a machine-gun squad and was shot by a Chinese machine-gunner during the Chosin Reservoir campaign during the Korean War, I became involved in shop-lifting, car theft, arson, and purse-snatching, narrowly escaping a prison sentence. However, a Court Judge was severe enough to bring me to repentance and merciful enough to allow me time to straighten out my behavior. Although, Mr. D_ (Applicant) has taken a longer to figure things out and stay out of trouble, his penitent attitude is genuine and is deserving of the Board’s merciful consideration.

Issue 2: Mr. D_ (Applicant) has a great deal to offer to prospective employers when he is released. He has cultivated industrious work habits as he has matured. He can go to work as an auto mechanic, restaurant chef, assembler in manufacturing plants, cement finisher, and framer in residential or commercial construction. A more acceptable discharge from the Navy will facilitate his re-entry into the world of work.

Issue 3: Mr. D_ (Applicant) has now reached a level of maturity that justifies our faith in his determination to become a productive citizen when he becomes free to enjoy the right granted by our Creator to pursue happiness in ways which foster order and fulfillment rather than the path formerly followed which led to the disgrace which resulted in his less that honorable discharge from the U. S. Navy. Those of us who know who R_ (Applicant) has become will be much obliged if you can share the trust in him which we now hold and grant his request for an Honorable Discharge.

Issue 4: Mr. D_ (Applicant)’s devotion to the Lord, as manifested in his behavior at the worship services he consistently attends, will be a strong force in gibing him strength to resist the distractions that might other wise lure him into activities that would discredit our faith in his thoroughly changed character. I feel sure the Board will not be disappointed in giving him a vote of confidence that could provide just the sort of encouragement that will smooth his return to a productive life.”

L_E_
Counselor
Christ Prison Ministries

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from L_ E_, dtd August 5, 2005
Applicant’s DD Form 214 (Copy 4)
Ltr from National Personnel Records Center, dtd December 11, 2002
Veteran’s Club Officers By-Laws, undated
Ltr from D_ R_ (Applicant), undated
Veteran’s Club flyer
Certificate of Appreciation, dtd July 22, 2002 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19910816 – 19911015               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19911016             Date of Discharge: 19921102

 Length of Service (years, months, days):

         Active: 01 00 17
         Inactive: None

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

 Age at Entry: 20

 Years Contracted: 8

 Education Level: 12                                 AFQT: 32

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (1)              Behavior: 2.8 (1)                 OTA: 3. 0

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


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

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

920824:  Case for separation was developed when SNM tested positive for THC during a unit sweep urinalysis on 240892.
920910:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
 Violation of UCMJ, Article 112a: Wrongful use, possession, etc of a controlled substance.
         Award: Forfeiture of $440.25 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

920910:  NJP for violation of UCMJ, Article 134: Disorderly conduct, drunkenness;
Violation of UCMJ, Article 92: Failure to obey a lawful written order.
Award: Forfeiture of $440.25 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
920930:  Drug and Alcohol Program Advisor Administrative Screening: ISCS W_ comments: “Member admits to heavy alcohol abuse and should be evaluated for co-dependency.”

921001:  Medical evaluation by: Medical Officer, G_, L. D_.
         Amount used: 10-12 beers and mixed drinks (total) almost every night and weekends (1 gallon whisky one day at times).
         History: Also used marijuana once/ 6 month; caught on command urinalysis and for THC 8/24/92 – being administrative separated.
         Assessment: Substance dependence – 3 or more diagnostic criteria have existed for at least one month, or have occurred repeatedly.
         Plan: Level III program (6 week inpatient), Obtain above treatment through VA after discharge.
         Evaluation indicates SNM is drug dependent.
        
921009:  Applicant notified of intended recommendation for discharge with under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO’s mast dated 10 September 1992.

921009:  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. Applicant stated that he does not object to this separation.
921017:  Commanding Officer, USS VINCENNES, recommended discharge with a under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officers mast dated 10 September 1992. Commanding Officer’s comments: “SA D_ (Applicant) admitted to using marijuana (THC) and also relates heavy alcohol use (10 to 12 beers and mixed drinks at a time) and attendance at A. A. meetings in high school. I recommend that SA D_ (Applicant) be separated with an other than honorable discharge.”

921026:  BUPERS, directed the Applicant's discharge with 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 19921102 by reason of misconduct due to drug abuse (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’s counsel contends that the Applicant is “remorseful over his youthful, impetuous, misguided mistakes” and asks the Board to consider an upgrade of his discharge from Other Than Honorable Discharge to Honorable Discharge. The Board advises the Applicant and counsel 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 92 (2 specs), 112a, and 134 of the UCMJ 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’s counsel states the Applicant has a great deal to offer to prospective employers when he is released. T he 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. Relief is not warranted.

On behalf of the Applicant, counsel states the Applicant has now reached a level of maturity that justifies our faith in his determination to become a productive citizen when he becomes free. 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. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 violation of the UCMJ, Articles 92 (Failure to obey order or regulation), 112a (Wrongful use, possession, etc of a controlled substance), and 134 (Disorderly conduct, drunkenness)

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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