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NAVY | DRB | 2006_Navy | ND0600008
Original file (ND0600008.rtf) Auto-classification: Denied


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

ex-FCSR, USN
Docket No. ND06-00008

Applicant’s Request
The application for discharge review was received on 20050928. 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 Representation as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060621. 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

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

“I strongly feel that mercy, compassion, and genuine reconsideration are warranted and deserving in my case because pertinent details that lead to my discharge were either overlooked or simply ignored. My behavior was referred to and considered willful misconduct which suggests deliberate and intentional wrongdoing. That very notion is totally inaccurate and completely undermines all that I endured and accomplished throughout my military career. I feel that it’s extremely important for whomever reviews my case to ponder over the facts and circumstances that led to my undesirable discharge. There was no coincidence I spent over three years of service without a single incident and received a ribbon of good conduct to support and substantiate my track record of good-standing. There was no mistake in being acknowledged and recognized by my direct chain of command as a committed and hard-working sailor where evals for promotion plainly reinforce these merited claims. My reputation of dependability was unquestionably deserving. I was totally dedicated in my service to the U.S. Navy and would have never consciously done anything to jeopardize the positive progression and completion of a promising military career. The hurtful accusations of misconduct were based on the confusion that engulfed my marriage and my inability, despite countless efforts to resolve these issues on my own. The disturbing and burdensome family matters that I endured made fulfilling my obligations to the U.S. Navy complicated and overwhelming for many reasons. But in no way did this reality reflect an attitude of indifference or disregard for my duties. Unfortunately I was a young man who desperately tried to appease to conflicting entities and ideals while striving to maintain my own sanity and peace of mind. In my naïve efforts and determination to satisfy my two clashing commitments I found myself in uncharacteristic run-ins with civilian authorities which incidentally lead a number of Captain’s Mast. With each NJP I had my marital problems that were directly related. Entirely truthful and relevant these disruptive family matters were never addressed, only the alleged misconduct or UA that come as a result. There was a consistent focus on the effect of situations vice the actual cause.
The source of my issues were blatantly evident but for reasons I may never understand never received the necessary attention. Mediation, counseling, or anything to the like was never ordered, suggested, or considered in resolving an undeniable delimma. I honestly sought to do the unthinkable in striving to balance a struggling marriage and meet the demands of my cold and uncompassionate command. Regardless of my rationale and train of thought I truly realize that I am ultimately responsible for the decisions that were made which had a huge impact on my life. I am not looking to redirect blame or excuse myself from making poor choices, but I do look to stress that all options were not explored or exhausted from both ends of the spectrum and I did not demonstrate willful misconduct. Since my discharge and separation from my wife I’ve made remarkable strides in recovering from the persecution I suffered from the civilian judicial system as well as the military. I’m a single father of three girls who has taken on the responsibility wholeheartedly. I attend church regularly and try to do positive things in my community. I hope that all my defining characteristics that I displayed before and after my marriage clearly show what was the basis of my problems and my discharge. So please consider all that has been said and evaluate my case with open-mindedness and fairness because I served honorably and feel that I’ve earned and deserve an upgrade to my original discharge.

E_ L_ (Applicant’s signature)”

The representative submitted no issues.
Documentation
Only the service 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)     19970110 – 19970506      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970507             Date of Discharge: 20020108

 Length of Service (years, months, days):

         Active: 04 08 01 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 10 days
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 4 (24 month extension)

 Education Level: 12                                 AFQT: 76

 Highest Rate: FC3

 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 :

970110:  Pre-service waiver granted for Chart C offense, shoplifting.

000925:  NJP for violation of UCMJ, Article 92 (2 specs): Violation of a lawful general order and dereliction of duty.
 Award: Restriction and extra duty for 30 days, reduction to E-3. No indication of appeal in the record.
000929:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 92 (2 specs) disobeying a lawful general order and dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
001104:  NJP for violation of UCMJ, Article 86: Absence from unit.
         Award: Restriction and extra duty for 14 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record. [Extracted from Report And Disposition Of Offenses, dated 6 November 2001.]

001208:  Administrative Counseling/Warning: Applicant reissued ID Card due to lost/ theft under the following circumstances. “My ID Card was taken and disposed of by ex-girlfriend.” Counseling/warning is made to afford the Applicant an opportunity to undertake corrective action in order to avoid future incidents and higher corrective measures.

 010520:  Applicant to unauthorized absence at 0610 on 010520.

 010530:  Applicant from unauthorized absence at 1855 on 010520 (10 days/surrendered).
010601:  NJP for violation of UCMJ, Article 86: Absence from unit.
         Award: 45 days extra duty and restriction to USS LAKE CHAMPLAIN, reduction to E-2. No indication of appeal in the record.
011031:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 011025, tested positive for THC.

011109:  NJP for violation of UCMJ, Article 112a: Wrongfully used marijuana.
         Award: Not found in record. [Extracted from CO’s ltr dated 11 Dec 01.]
011128:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct commission of serious offense, misconduct drug abuse, and misconduct pattern of misconduct.

011128:  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.
011211:  Commanding Officer, Navy Region Southwest Transient Personnel Unit recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, pattern of misconduct, and drug abuse. Commanding Officer’s comments: “FCSR L_’s (Applicant) wrongful use of marijuana and pattern of misconduct, based on his two non-judicial punishments, preclude his further retention in the naval service. Therefore, I recommend that he be separated from the naval service with an Other Than Honorable Discharge by reason of misconduct due to commission of a serious offense, pattern of misconduct, and drug abuse.”

011226:  GCMCA, Commander, Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

         Service Record was missing elements of the Summary of Service (Performance and Behavior marks).

        

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020108 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 available 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).

 There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 4 nonjudicial punishment proceedings for violations of Articles 86, 92 (2 specs) and 112a of the UCMJ. Violations of UCMJ Articles 92 and 112a are considered serious offenses. In addition, the Applicant received a retention warning, which he violated by continued misconduct. 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 contends that his problems in the Navy can be attributed to martial problems. While he may feel that his stressful family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.







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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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, Article 92 ((Violation of lawful general order and dereliction of duty) and 112a (Wrongful use, possession, etc., of controlled substances).

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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