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


FOR OFFICIAL USE ONLY


ex AR, USN
Docket No. ND06-00040

Applicant’s Request

The application for discharge review was received on 20051004. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20060810. 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“The following are “issues” and “reasons” why I think my discharge should be changed. This discharge is improper because its preventing me from re-enlisting into the medical training program or any branch of the Armed Services. Due to the RE-code 4. Other than Honorable Conditions Discharge Code. This discharge is improper because of my service during Operation Desert Fox in Dubai. I served over ten months sea duty up on the USS Carl Vinson [sic]. I honorably served my country in combat type situations.”


“The following are “issues” and reasons why I think my discharge should be changed per #8.

This discharge is improper because it’s preventing me from re-enlisting into the Army Medical Training Program, or any branch of the armed services. This is due to a Re- code 4, Other Than Honorable Conditions Discharge code.

This discharge is improper, because of my service during Operation Desert Fox in Dubai. I served over ten months at sea on board The USS Carl Vinson, CVN 70 [sic]. I honorably served my country in combat type situations earning the Armed Forces Expeditionary Medal & The Navy E. Ribbon, while out to sea in the West Pac. I served fourteen months active duty. That is when I became a “Shell Back”.

The disciplinary action given to me was one hundred days of restricted duty on board The USS Carl Vinson [sic]. I was disciplined for two incidents in a fourteen-month period of service with No Other Adverse Action.

My discharge has made it impossible to apply for veteran’s preference, or receive VA medical benefits. I am also unable to receive monies that I agreed to have taken from my military check while on active duty for the Montgomery GI Bill. The honor’s and certificates given to me after the military should show that I am not one to continue on the wrong Track and I’m working on doing positive things with my life. However my current character of discharge has made it difficult and I feel it should be upgraded.

I never wanted to separate from the service. During the last six years I have worked hard to prepare myself in becoming the person I am today, which is a large contrast to the person I was six years ago. I have had a lot of support from my family, friends and my church. With their help I have made the necessary changes to become a better person.

I think I have succeeded, but I realize I have not reached my goals. I’ve earned an AA degree in Science and have ninety college units. Today I’m a Nursing Student at City College of San Francisco and my major is Bachelors of Nursing (RN) program.

Since my discharge from the Navy in September 1999, I have grown up. I know with the training & skills through the Army Medical training Program I will be “all I can be”

I have a strong military background. My grand father is a World War II veteran. All three of my uncles also went into the military. One of my uncles, J_ R_’s a Sergeant first Class with twenty plus years in service. He is now serving in Iraq. My aunt went served in the Army for eight years.

The military is in our blood and we were and “are” very proud to serve our county. This another reason why I respectfully request that you grant me an upgrade in my character of discharge and again allow me to serve my country.”


“Dear Sir, Madam,

I’m considering my future, at the same time never forgetting how and where I learned how to push myself to the limit. Thanks to training I received during my fourteen months of active duty in the United States Navy aboard the USS Carl Vinson [sic].

I respectfully request a change in the type of military discharge I received.

During my first thirty days on the Carl Vinson [sic] we were immediately sent over to Dubai in the Persian Gulf. Most of the time we were directly in the middle of combat operations. I worked in the Weapons Department as an Aviation Ordanceman. I was awarded the Navy E Ribbon. We were at sea for more than ten months. We served our country with honor, courage & commitment. The discharge I received was Under Other Than Honorable Conditions. I am requesting a discharge of General Under Honorable Conditions. The Re-enlistment code issued to me during my separation was a RE-code #4. I’m requesting the RE-code upgrade of #3, or higher. I am again ready to serve my country by now joining the United States Army medical Program.

It has been six years since my discharge from the Navy. I have made significant achievements since then. I have earned an Associates of Science Degree, from Silicon Valley College; 90 college units studying Health Care Technology. I’m currently a Nursing Student at City College of San Francisco pursuing my Bachelors Nursing Degree.

The Army is recruiting me as a Medical Trainee. I‘ve had extensive traing and am certified in First Aid and CPR. I have been working hard in Hospital, multi specialty clinic and clinical lab settings. These skills will be utilized in the Army where I can assist other military medical professionals. This is an excellent opportunity, so please award me an upgrade in my discharge’RE-code so I may continue my training in the military.

I have submitted supporting documents as proof of my dedication And ambition in trying to improve my life and possibly this country.

Respectfully,

A_ D_(Applicant)”

Documentation

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

Character Reference ltr from A_ R_, Veterans Service Representative, dtd August 30, 2004
Character Reference ltr from J_ M_, Radiation/Oncology, dtd August 25, 2005
Character Reference ltr from M_ & L_ S_, dtd August 26, 2005
Silicon Galley College Grade History Report, dtd September 16, 2004
Applicant’s Associate of Science, Medical Assisting Degree, Silicon Valley College, dtd September 10, 2004
Certificate of Completion for Infection Control, Sterilization, & Assisting in Minor Surgery, dtd June 25, 2004
Certificate of Completion for Human Anatomy, Physiology, & Medical Terminology , dtd March 28, 2003
Certificate of Training in Medical Laboratory Assistant, dtd June 20, 2003
Certificate of Training in Electrocardiography Technician, dtd October 24, 2003
Applicant’s Healthcare Provider, dtd October 2003
Certificate of Completion of course to administer medications by intramuscular, subcutaneous and intradermal injections, September 12, 2003
Certificate of Attendance from Immunizations Techniques, undated
Award for Attendance form Silicon Valley College, dtd March 28, 2003
Award for Attendance form Silicon Valley College, dtd June 20, 2003
Award for Attendance form Silicon Valley College, dtd August 01, 2003
Applicant’s DD 214 (Member 1)
Applicant’s DD 214 (Member 4)

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     19980619 – 19980701      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19980702             Date of Discharge: 19990910

Length of Service (years, months, days):

         Active: 01 02 08 (Does not include lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 32 days
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 48

Highest Rate: AA

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): Armed forces Expeditionary Medal, Navy “E” Ribbon.

* Not Available

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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 :

980619:  Applicant briefed on Navy's policy of drug and alcohol abuse.

990529:  Applicant to unauthorized absence at 0715 on 990529.

990607:  Applicant from unauthorized absence at 0715 on 990607 (9 days surrendered).

990611:  Applicant to unauthorized absence at 0715 on 990611.

990614:  Applicant from unauthorized absence at 0715 on 990614 (3 days surrendered).

990617:  Applicant to unauthorized absence at 0715 on 990617.

990701:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990624, tested positive for THC.

990 7 1 0 :  Applicant from unauthorized absence at 0715 on 990710 (24 days surrendered).

990714:  Psychology Officer’s Interview: SNM was evaluated this date, upon referral from DAPA, based on his positive urine screen for THC. SNM was found to have a significant substance use problem and meets the diagnostic criteria for Cannabis Dependence. SNM does not require hospitalization for detoxification nor require any immediate medical treatment. Appropriate and/or disciplinary actions, as the command sees fit, are not psychologically contraindicated. Administrative separation processing is anticipated.
         Recommendations: Drug rehabilitation is clinically appropriate and recommended at this time; SNM appears amenable to this recommendation.

990715:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Specification: In that Airman Apprentice A_ D_ (Applicant), U.S. Navy USS CARL VINSON, on active duty, did, on or about the month of June, wrongfully use marijuana.
         Violation of UCMJ, Article 86 (3 Specs): Absent himself from his unit.
         Specification 1: In that Airman Apprentice A_ D_ (Applicant), U.S. Navy, USS CARL VINSON, on active duty, did, on or about 0500 hours, 2 June 1999, without authority, absent himself from his unit at which he was required to be, to wit: USS CARL VINSON (CVN 70), then located at Puget Sound Naval Shipyard, Bremerton, Washington, and did remain so absent until on or about 0940 hours, 7 June 1999.
         Specification 2: In that Airman Apprentice A_ D_ (Applicant), U.S. Navy, USS CARL VINSON, on active duty, did, on or about 0715 hours, 11 June 1999, without authority, absent himself from his unit at which he was required to be, to wit: USS CARL VINSON (CVN 70), then located at Puget Sound Naval Shipyard, Bremerton, Washington, and did remain so absent until on or about 0830 hours, 14 June 1999.
         Specification 3: In that Airman Apprentice A_ D_ (Applicant), U.S. Navy, USS CARL VINSON, on active duty, did, on or about 0715 hours, 17 June 1999, without authority, absent himself from his unit at which he was required to be, to wit: USS CARL VINSON (CVN 70), then located at Puget Sound Naval Shipyard, Bremerton, Washington, and did remain so absent until on or about 1625 hours, 10 July 1999.
Award: Forfeiture of $480.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

990720:  Drug and Alcohol Abuse Report: Applicant wrongfully abused marijuana on 990714 at an unknown place. A clinical psychologist found Applicant dependent and not eligible for counseling/education/rehabilitation. Recommend Applicant be separate from service via VA Hospital. Commanding Officer recommends process for separation and separation from the service not via VA Hospital. Disciplinary action taken was NJP. Commanding Officer’s Comments: “This incident: 14JUL99- Positive urinalysis for THC. NJP Article 112a (wrongful use of marijuana). Member has no potential for further useful service.

990802:  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 drug abuse.

990802:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

990813:  NJP for violation of UCMJ, Article 112a: wrongfully use of marijuana.
         Award: Forfeiture of $480.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

990820:  Commanding Officer, USS CARL VINSON (CVN 70), recommended the Commander, Carrier Group THREE, that the Applicant be discharged with under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by his nonjudicial punishment imposed on 15 July 1999 for violation of the UCMJ, Article 112a. Commanding Officer’s comments: “Strongly recommend separating AR D_ for misconduct due to drug abuse with an Other Than Honorable discharge.”

990824:  COMCARGRU THREE directed the Applicant’s discharge with under other than honorable conditions by reason of misconduct due to drug abuse.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990910 by reason of misconduct due to drug abuse (A) 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 (B and C).

Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation. Characterization of service under other than honorable conditions 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. There is clear evidence in the service record that the Applicant used illegal drugs. Indeed, the Applicant received nonjudicial punishment on 19990715 and 19990813 for violation of UCMJ Article 112a Wrongful use of controlled substance (marijuana). The Board also noted that the Applicant’s misconduct was further aggravated by three periods of unauthorized absence, which were adjudication at nonjudicial punishment proceedings on 19990715. These instances of misconduct are not isolated events. Evidence of such misconduct may be used to characterize a member’s discharge under other than honorable conditions. This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service. Relief denied.

The Applicant is advised 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 or enhancing employment and educational opportunities. Additionally, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted three character references and academic credentials and accomplishments in the medical field for consideration. The Applicant’s efforts need to be more encompassing to include verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the discharge at that time. 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 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. 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