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NAVY | DRB | 2006_Navy | ND0600216
Original file (ND0600216.rtf) Auto-classification: Denied


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

ex-GMSN, USN
Docket No. ND06-00216

Applicant’s Request
The application for discharge review was received on 20051116. 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 20060926 . 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 application:

“I wish to fulfill my service to my country. I am requesting an upgrade so I may enlist in the U. S. Army.”
The Applicant states “If you look over my record before this incident I was an outstanding Sailor”.

Additional issues submitted by Applicant’s representative American Legion:
The Applicant is claiming post-service conduct and request the board to assess the merits of his post service when reviewing his application.


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

Review of the service records reflect that this former member maintained satisfactory 3.60 performance / 3.60 conduct markings and earned National Defense Service Medal. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because of his post service conduct. He was awarded the National Defense Service Medal while serving. He has submitted one letter attesting to his current character for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.






Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Ltr from Applicant, undated (2 pages)
Character Reference ltr from R_ P_, Uncle of Applicant, undated (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011 026 - 20011203      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20011204             Date of Discharge: 20040212

 Length of Service (years, months, days):

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

 Time Lost During This Period (days):
Unauthorized absence: 140 days
Confinement:              None
Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 35

 Highest Rate: GMSN

 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): National Defense Service Medal

* 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 :

030428:  Applicant to unauthorized absen c e on or about 0645. [ Extracted from report of disposition 20031002].

030524:  Applicant on or about 0800 missed movement (USS VELLA GULF CG72) [extracted from report of disposition 20031002].

030915:  Applicant from unauthorized absence on or about 1230. [ Lost time 140 days. Applicant surrendered.] [ Extracted from R eport and D isposition of Offenses 200 1 1002 *. Administrative error, date should read 20031002. ]

030929:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030925, tested positive for Cocaine and Marijuana.

 031003:  Applicant placed on Pre-Trial Confinement for violation of UCMJ Articles 86 (unauthorized absence), 87 (missing movement) and 112a (wrongful use of a controlled substance THC and Cocaine).
031103:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Articles 86: Unauthorized absence (VA) from 030428 until 030915, 87 (missing movement) and 112a (wrongful use of a controlled substance THC and Cocaine).
031103:  Charges referred to special court-martial.

031104:  Applicant informed of Charges against him.

031107:  Drug and Alcohol Incident Report: Applicant while ashore, off duty on September 22, 2003 in VA, Norfolk Area did use marijuana. Method of identification: Service directed urinalysis.

031107:  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 and misconduct due to commission of a serious offense.

031107:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

 040204:  Comman ding Officer, USS VELLA GULF (CG 72) letter of withdrawal of charges. Charges were not specified.

040204:  Commanding Officer, USS VELLA GULF (CG 72), recommended to Commander, Carrier Group Eight, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense. Commanding Officer’s comments: “While onboard USS VELLA GULF, GMSN P_ (Applicant) demonstrated substandard performance. GMSN P_ (Applicant)’s violation of the UCMJ Article 112a, wrongful use of a controlled substance, demonstrated his disregard for Navy rules and regulations, and his inability to conform to the Navy’s high standards. I strongly recommend that GMSN P_ (Applicant) be separated from the Naval Service with an Other Than Honorable characterization of service.”
040210:  Commander, Carrier Group EIGHT, authorized the Commanding Officer, USS VELLA GULF (CG 72), that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040212 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant states “If you look over my record before this incident I was an outstanding Sailor”. 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 Applicant claims he was an outstanding Sailor and graduated with high scores from “A” School. 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 violations of UCMJ Articles 86 (unauthorized absence greater than 30 days), 87 (missing movement) and 112a (wrongful use of a controlled substance, THC and Cocaine). 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 American Legion, on behalf of the Applicant, states “Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because of his post service conduct. He has submitted one letter attesting to his current character for consideration”. 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 sufficient post-service documentation for the Board to consider. Relief denied.

The Applicant states “I wish to fulfill my service to my country. I am requesting an upgrade so I may enlist in the U.S. Army”. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 s 86 (unauthorized absence greater than 30 days), 87 (Missing Movement), and 112a (wrongful use of a controlled substance, THC and Cocaine).

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 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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