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NAVY | DRB | 2006_Navy | ND0600119
Original file (ND0600119.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-MS3, USN
Docket No. ND06-00119

Applicant ’s Request
The application for discharge review was received on 20051027 . The Applicant request ed the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant designated a private representative as the representative on the DD Form 293. The Applicant requests a documentary record discharge review. Informed that he was approaching the 15-year point for rev iew, Applicant elected to have a personal appearance. Applicant was sent a scheduling notice for the February 2007 or later timeframe ; however, failed to respond by the deadline date to notify the NDRB of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070315 . 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 commission of a serious offense.
The NDRB did note administrative error(s) on the original DD Form 214. Block 2 4, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS,”, and Block 2 8, Narrative Reason for Separation, should read: “ Misconduct - commission of a serious offense, ” and Block 29, Dates of Time Lost During This Period, should read: TL: 92JAN02 TO 92JAN06, 92JAN15 TO 92JAN16. ” The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION


Decisional Issues

Equity: Discharge not warranted by overall service.
         Post-service conduct mitigates characterization of service.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214
 Applicant ’s DD Form 214 for discharge of April 23, 1989 (Service 2)
 Applicant ’s DD Form 214 for discharge of August 25, 1987 (Service 2)
 Character Reference ltr from R_ K_, dated June 22, 2005
Character Reference ltr from S_ K. L_, Associate Pastor, dated July 3, 2005
 Applicant ltr to Board for Correction of Naval Records, undated
 Four pages from Applicant ’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19820611 - 19820726       COG
         Active: USN      19820727 - 19870825       HON
                   USN      19870826 - 19890423      HON
Period of Service Under Review :
Date of Enlistment: 19890424              Date of Discharge: 19920730

Length of Service (years, months, days):

         Active: 03 03 07 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 5 day s
         Confinement:              None

Age at Entry: 2 8
Years Contracted: 4
Education Level: 12                                 AFQT: 48

Highest Rate: MS2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 ( 5 )                        Behavior: 2.8 (5 )                  OTA: 2 . 8 0
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): First Good Conduct Award (for period ending 1 Feb 90); .38 Caliber Revolver (Sharpshooter); National Defense Service Medal, Sea Service Deployment Ribbon (3); Armed Forces Expeditionary Medal


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

890424 :  Reenlisted this date for a term of 4 years.
920102:  Applicant to unauthorized absence at 1300.

 920104:  Medical evaluation at Branch Medical Clinic, Naval Weapons Station, Yorktown, VA by T. R. S_, LT, MC, USNR
         Assessment: Applicant is ETOH dependent.
         Plan: Strongly recommend alcohol treatment preferably inpatient treatment Level II or III.
          Recommendation: CAAC treatment.

920106:  Applicant from unauthorized absence at 1510 (4 days/surrendered).
920115:  Applicant to unauthorized absence at 1300.

 920117:  Applicant from unauthorized absence at 0700 (1 days/surrendered).
920205:  Naval Drug Laboratory, Norfolk reports Applicant’s urine sample, received 920117, tested positive for cocaine.
         [Extracted from Urine Sample Custody Document, dtd 920205.]

 920225 :  Medical evaluation for substance abuse by T. R. S_, LT, MC, USNR
         PT (Applicant) here for substance abuse evaluation in light of UA/drug screen from incident Jan 92. PT UA, positive for cocaine. PT volunteers self-referred to discipline offense and admits to both history of ETOH use and weekly use of cocaine by sniffing drug.
 Assessment: ETOH dependence in remission at this time. Would strongly recommend suggest Applicant be allowed to attend AA - NA meetings while on restriction.
Cocaine abuse (illegible) no evidence of dependence per history, but can not R/O this out considering nature of drug.
         Plan: Feel Applicant would benefit from inpatient treatment and NA/AA meetings. Applicant should be offered either USN inpatient Level III treatment or referred to VA inpatient treatment after discharge.
         Recommendation:
920304 :  Drug and Alcohol Abuse Report: Cocaine abuse, abuse denied. Service directed urinalysis on 920116. Physician found Applicant not dependent and recommended separation via VA hospital. Commanding Officer recommended separation via VA hospital. Comments: Member was previously considered a top notch performer. Member has served as BEQ Building Petty Officer, CARD Supervisor and CLASS Petty Officer. Member received praise by MAIT INSPECTION Team during July 90 visit. Member received a “W ell D one ” from ADM E_ R. Z_ inspection team during FY90 competition. Member performance deteri or ated in the last year. Member has needed increased supervision to accomplish assigned tasks, and Quality of his work has decreased. Member is deemed unfit for further military service.
         Officer-in-Charge c omments: Member reported aboard NSC Cheatham Annex Jun 1989 and established himself as “Hard Charging” team member. His work ethnic combined with praise from superiors, resulted in service member being name Sailor of the Quarter for 3 rd Quarter FY90. Member in last year has experience a weight problem. He has failed to comply with military standards. He has been provided help f ro m Ft. Eustis Dietitian Clinic. Member has a court martial pending for following charges, unauthorized absence, larceny, unauthorized use of controlled substance and wrongful disposition of government property. This command was alerted to possible drug use during a command directed urinalysis on 920117. NAVDRUG Screening Lab NORVA 051001Z Feb 92 reported positive result of drug test.
920424 :  Charges preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) Article 121: In that Mess Management Specialist Second Class V_ H. R_, U.S. Navy, Naval Support Center, Williamsburg, Virginia, on active duty, did at Naval Supply Center, Williamsburg, Virginia, on or about November 1991 through January 1992, steal 9 Zenith Video Cassette Recorders and 2 General Electric Microwaves, of a total value of about $2,481.00, military property of the United States.

 920424 :  Charges referred to summary court-martial.
920427 :  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 121:
         Specification: Did, on or about November 1991 through January 1992, steal 9 Zenith Video Cassette Recorders and 2 General Electric Microwaves, of a total value of about $2,481.00, military property of the United States.
          Finding: to Charge and the specification thereunder, guilty.
          Sentence: Reduction to E-4.
         CA action 920518: Sentence approved and ordered executed.
920427 :  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 commission of a serious offense as evidenced by conviction at summary court-martial and by misconduct due to drug abuse as evidenced by command directed urinalysis.

920427 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights. Applicant indicated his objection to proposed separation.

920601 :  Commanding Officer , Naval Supply Center, Cheatham Annex, Williamsburg, recommended that the Applicant be discharge d under other than honorable conditions by reason of misconduct due to commission of a serious offense - Article 121: Larceny (9 VCRs and microwave ovens belonging to U.S. Government for use in ba chelor quarters, value of $2481 ) and misconduct due to drug abuse (positive sample of cocaine in command directed urinalysis).

920623 :  BUPERS d irected the Applicant 's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19920730 by reason of misconduct due to commission of a serious offense (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 Board noted that the Applicant appeared to be under the impression that the basis of discharge was misconduct due to drug abuse. However, t he evidence is undisputed that Applicant was convicted by summary court-martial of a violation of Article 121 of the UCMJ, Larceny. The NDRB advises the Applicant that such misconduct could have resulted in a punitive discharge at a special or general court-martial. 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 action. After review of all relevant aspects of his period of service , the Board determined that t he 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 discharge characterization accurately reflects his service to this country. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, employment records, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief based on post-service conduct. The Applicant’s statements and character statements concerning post-service conduct were found not to mitigate the misconduct which precipitated the discharge. Relief not warranted.
The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

 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 121 , Larceny .
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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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