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


FOR OFFICIAL USE ONLY


ex-FC2, USN
Docket No. ND06-00094

Applicant ’s Request

The application for discharge review was received on 20051012. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant designated the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060908 . 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:

“I served 5 years faithfully and honorably before being discharged. I served a voluntary 3 year tour in Yokosuka Japan. I volunteered also to decommission the U.S.S. Ticonderoga in Pascagoula Mississippi. I received nothing but exceptional evaluations throughout my career. After serving as work center supervisor on the U.S.S. Chancellorsville, I received a Navy Marine Corps Achievement Medal. I joined the Navy at the age of 28 and would proudly serve my country until retirement or death. Since my discharge I have been solidly employed and will be completing technical college for computer networking and repair with a 3.8 average in December of this year. I have a lot more to offer this country even if not in the military. My other than honorable discharge has affected my life in a negative way that I feel is not equal to the service I provided while in the Navy. I understand if I had been in the Army or Marines I would have been sent to counseling and would still be in the military. I feel the Navy unfairly gave me an Other Than Honorable discharge for the same charge that would not carry the same consequences if I had to decided to serve in a different branch of service.”

Additional issues submitted by Applicant ’s representative (American Legion):

“Equity Issue: Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request, on behalf of this former member, the Board’s clemency relief with an up-grade of his characterization of service on the basis of his post-service conduct.


In accordance with Title 32, CFR, section 724.116 and SECNVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to this Applicant’s petition.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded as it does not represent his true character. He has submitted 7 pages of additional documents attesting to his post-service education and 2 statements of character for consideration. In his written statement, the Applicant states that an upgrade is warranted based upon the quality of his service.

The SR shows that this Applicant earned a Navy and Marine Corps Achievement Medal, a Good Conduct Medal, the Sea Service Deployment Medal(3), a National Defense Service Medal, the Navy Battle Efficiency Award(3), the Navy and Marine Corps Overseas Service Ribbon(3), and a Navy Meritorious Unit Commendation. He earned a 3.8 overall performance rating. This Applicant was Under Other Than Honorable Conditions discharged and separated for misconduct due to drug abuse authorized by MILPERSMAN 1910-146.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the Applicant in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition. ”

Documentation

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

Applicant ’s DD Form 214 (2)
Louisiana Technical College, Internal Transcript – unofficial (2 pages) (2)
Oath of Office certificate, dtd August 25, 2004 (2)
Character Reference from Employer, L_ R_, Owner, Taste of Bavaria, dtd September 26, 2005 (2)
Character Reference ltr from J_ I. B_, MS, Hammand Campus Networking Department Head, dtd September 14, 2005 (2)
Appointment of Veterans Service Organization as Claimant’s Representative, dtd September 21, 2005

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     19981230 - 19990113       COG
         Active: USN      19990114 - 20021029       HON

Period of Service Under Review :

Date of Enlistment: 20021030              Date of Discharge: 20040206

Length of Service (years, months, days):

         Active: 0 1 0 3 0 7
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 32

Years Contracted: 5

Education Level: 8 GED                      AFQT: 80

Highest Rate: FC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 4 .0 ( 2 )                        Behavior: 4.0 ( 2 )                  OTA: 4.43

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy and Marine Corps Achievement Medal, Good Conduct Medal, Sea Service Deployment Medal (3), Natio nal Defense Service Medal , Navy Battle Efficiency Award(3), Navy and Marine Corps Overseas Service Ribbon (3), Navy Meritorious Unit Commendation

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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 :

021030 :  Reenlisted this date for a term of 5 years.

040205 :  Commander, Naval Surface Group TWO , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040206:  DD214: Applicant discharged this date under other than honorable conditions by reason of misconduct due to drug abuse.

040526:  Message from COMNAVPERSCOM to USS TICONDEROGA requesting administrative discharge package.

Service Record contains a partial Administrative Discharge package.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040206 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the Applicant’s discharge proper and equitable. The Applicant contends that his discharge was unjust because “the Navy unfairly gave me an Other Than Honorable discharge for the same charge that would not carry the same consequences if I had to [sic] decided to serve in a different branch of the service.” However, the record contains no evidence of any wrongdoing by anyone involved in the discharge process. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his discharge was improper. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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.

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. 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. The Applicant provided a college transcript, an oath of office, and two character reference letters as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted

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), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, 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 112a, use of drugs.

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 .

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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