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


FOR OFFICIAL USE ONLY


ex-AOAN, USN
Docket No. ND06-00115

Applicant’s Request

The application for discharge review was received on 20051026. 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 designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060807. 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 attached letter:

“To Whom It May Concern:

I enlisted in the US NAVY at the age of 18 on December 26,2000. I completed my training at the navel training Center in Great Lake Illinois on March 2001. I was sent to AO A School in Pensacola Florida. Upon completing my schooling I was ordered to report to the USS Carl Vinson [sic] CVN-70 in Bremerton Washington.

The USS Carl Vinson [sic] was off the coast of San Diego California. My first experience was being flown on board the ship. It was the start to a whole new life. I was sent to G-3 weapons to 74 mag. Weapons assembly mag. It was there I would start learning my new job.

I was then to start getting ready to go on my first West Pac. I was scared I had never been out on a West Pac or that long at one time out to sea. I got prepared the best I could. Nothing could prepare me for what was about to happen on this West Pac. It started out a normal slow day. A couple of months onto the Pac 911 happened on the shores of the United States. I could not believe what I was watching on TV my heart was coming out of my chest. We were just struck by terrorist on our own shore. Lots of people lost there lives that day and some people on my ship lost loved ones.

From this point on the whole West Pac was about to change. In October we started the bombing raid on Afghanistan. We were non stop from that point. On some days I was up for 2 straight days building bombs and on loads. We built over 2 ½ million pounds of Ordnance during this time and were also out to sea for 3 months with out hitting a port. People were going nuts. I was stressed out but my pride was running high.

After the West Pac we came back to Bremerton Washington our home port. We were there for a couple of months, at this time I made 3 ^rd class petty officer. I was so proud that day I could not believe I had passed the advancement test. I promised my self I was going to train even harder so I may teach my fellow airmen and new recruits what I know and to train them to be the best ordnance men they could be.

I worked with the best so I wanted to train them to be the best. I was put in charge of my own weapons mag. After this time we were getting ready to ship out on the 2 ^nd West Pac. I was training my airmen in what they needed to get ready for. It was not going to be an easy journey.

On this West Pac was when the war in Iraq was going to start. We were to patrol the South Korean coast. We hit a lot of ports on this West Pac and even got to stay in Guam for 2 weeks. When we were out to sea we still stayed pretty busy. Half way through, was when everyone was starting to get cabin fever. I was feeling the pressure to perform. We just got a few new 1 ^st classes on board that took over my shop. I had to get used to a whole new chain of command and how they liked things done.

It was about this time during west pack that people started using testosterone. I had no interest in it, I was about to become a military police officer. I had been waiting for this day for a long time. This was what I wanted to do if I did not decide to retire out of the military.

It was during this time the pressure of the new job and the West Pac had really set in. I wanted to perform at my best but I was worn out. My whole body and sprit was deteriorating. I had a couple of friends that where staying pretty energetic and motivated I asked them how they did it. They said they where taking a supplement. I did not think any thing of it because I was taking protein powder they sold on the ship because I was in the gym every day. Then for weeks they kept trying to get me to use there supplements.
Well after time I was interested because I did not feel like I was performing to the best of my ability. I was worn out from being out to sea and working and all the pure presser. So that is when I tried testosterone for the first time in my life. The only thing it did was give me more energy. After that I realized what I was really doing, letting my self and my ship mates, chain of command down. I also found out that the testosterone I was using was not permitted when I found that out I quit using the testosterone. Before I could throw every thing away and say goodbye to that staff there was a rack inspection in my berthing. It was there they found the testosterone in my rack. I felt horrible I was humiliated I new then my whole life was about o change. It did I was sent back to my old department. Later went to captains mass.

I felt like my whole world had ended, I was going to have to go home. I was not ready to go home. I planned on reenlisting for the next four years. I planned on making a career out of the navy. I had no idea what I was going to do. I felt lost. I loved serving my country and working as an ordnance men and a military police officer.

I let pressure get to me like I had told so many others not to do. I felt like I had let every one down. I had received all good evaluations during my time of service. I served my country to the best of my ability. I always did what was asked of me with no arguing.

I am now trying to get my life back on track out here in the world. I am trying to get a job as a highway patrol officer. The only thing that stands in my way is my discharge code. I am also trying to get into the army reserves so I may still serve my country and serve my city. I need your help in doing this please help me get my life on track so I may succeed in my passion of being in law enforcement and to serve my country. I have inserted a letter from my former 1 ^st class petty officer B_ J_ T. He is still on board the USS Carl Vinson [sic] to this day.

Thank you very much,

M_ J_ D. (Applicant)”

Issues submitted by Applicant’s representative ( American Legion):

“(Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

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-293, this applicant is requesting that his discharge be upgraded because he believes that his discharge does not represent his true character. The former member contends that he was a good soldier who made a poor decision while in service due to the stress of military life. The former member served his country well while he was in and believes that his discharge does not represent his character. He has submitted 6 pages of additional documentation attesting to his post-service service employment training for consideration.

The former member earned a Sea Service Deployment Ribbon (2), Navy “E” Ribbon, National Defense Service Medal, and a Navy Unit Commendation. He received an overall performance evaluation of 3.86. The former member was awarded NJP for VUMCJ Article 112A: wrongful possession of testosterone enanthate, a schedule III controlled substance while on board a U.S. Navy vessel. On 031003, this former member was discharge Under Other Than Honorable Conditions for Misconduct Due To Drug Abuse as 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.                             
                                                               S. S____________
Military Review Boards
Representative”


Documentation

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

Applicant’s DD Form 214
Document from Verified Credentials, Corporate Headquarters, dtd August 2, 2005
Email from J_ T. B_, dtd June 17, 2005
Character Reference ltr from J_ T. B_, undated and not signed
Character Reference ltr from D_ M_, Sales Manager, undated

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     20001116 – 20001225               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20001226             Date of Discharge: 20031003

Length of Service (years, months, days):

         Active: 02 09 08
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 51

Highest Rate: A03

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.8 (5)              Behavior: 3.6 (5)                          OTA: 3. 6

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon (2), Navy “E” Ribbon, National Defense Service Medal, Navy 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 :

001116:  Pre service waiver for one non-minor misdemeanor (DUI).

001116:  Applicant briefed on Navy's policy of drug and alcohol abuse.

030909:  NJP for violation of UCMJ, Article 112a: Wrongful possession of testosterone enanthate, a schedule III controlled substance while on board a U. S. Navy Vessel.
         Award: Forfeiture of $771.00 pay per month for 2 months, restriction for 30 days, reduction to E-3. No indication of appeal in the record.

031001:  COMCARGRU THREE , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031003:  DD214: Applicant discharged this date.

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 20031003 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).

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 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 a nonjudicial punishment proceeding for violation of Article 112a of the UCMJ. 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.

There is credible evidence in the record that the Applicant possessed 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 Applicant’s representative submitted the following as an issue: “(EQUITY ISSUE)” This
former member further requests that the Board include provisions of SECNAVINST 5420.174D, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided one letter of recommendation from his employer and one executive summary of verified credentials 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, 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.

For the Applicant’s edification, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 Present, 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, 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 .

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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