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NAVY | DRB | 2006_Navy | ND0600359
Original file (ND0600359.rtf) Auto-classification: Denied


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

ex-ATAA, USN
Docket No. ND06-00359

Applicant’s Request
The application for discharge review was received on 20051228 . 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 . In the acceptance letter the A pplicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington DC area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108 . 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 issue s, as stated on the application :
“ I was young when I started using drugs, I tried to stop on my own but could not. Thur the greac of God I stop one year before my court martial. It’s now been 17 yrs. That I have been clean. I did a great job for the Navy other than the drug use. I worked hard all the time, even after the court martial. I make a mistake and ask forgiveness for it. I have change my life greatly sense that time. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Letter of Recommendation from S_ G. C_, President, F_ C_ G_, dtd December 6, 2005
 Character Reference from L. A. W_, SFC, U.S. Army, dtd December 9, 2005
Character Reference from B_ R_, Library Assistant, B_ University, dtd October 1, 2005
Character Reference from T_ T_, dtd November 28, 2005
Letter of Recommendation from J_ S_, Director of Admissions, B_ Univeristy, dtd September 29, 2005
Character Reference from C_ P_, Program Coordinator, undtd
EWH Ministries Mission Statement and Goals
 Certificate of Ordination, F rontline M inistries International, Inc., dtd May 20, 2004
 Bachelor of Theology, Christian Life School of Theology, dtd August 12, 2003
Certificate of License to preach, World Changes Tabernacle Church, dtd November 2, 2003
Diploma, Discovery Bible Church, dtd July 2, 1997
Regent, Christian Life School of Theology, dtd September 1, 2001


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN      19770131 - 19820528       HON
          Inactive: USNR (DEP)     19840531 - 19840611       COG
Period of Service Under Review :
Date of Enlistment: 19840612              Date of Discharge: 19901220

Length of Service (years, months, days):

          Active: 0 6 0 6 0 9 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              56 day s

Age at Entry: 26

Years Contracted: 6 ( 16 -month extension)

Education Level: 12                                 AFQT: 34

Highest Rate: AT 3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 3 ( 5 )     Behavior: 3 . 3 ( 5 )        OTA: 3.24

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Award (2nd), Battle Efficiency “E” Ribbon, Meritorious Unit Commendation, Sea Service Deployment Ribbon (2).


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

840619:  Applicant to unauthorized absence as of 0530, intentions unknown.

 840619:  Applicant from unauthorized absence as of 1247, surrendered.
840920:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana, a controlled substance on or about 840730 to on or about 840830.
         Award: Forfeiture of $396.00 per month for 2 months, restriction for 30 days, reduction to E-3. No indication of appeal in the record.
840920:  Retention Warning: Advised of deficiency (wrongful use of marijuana), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
841215:  NJP for violation of UCMJ, Article 116: Breach of the peace
         Award: Forfeiture of $50.00 per month for 1 month, restriction for 5 days. No indication of appeal in the record.

 870805:  Counseling: Advised of deficiency (failed to meet the physical readiness standards of OPNAVINST 6110.1C due to failing the PRT), notified of corrective actions and assistance available.

 891020:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 891006, tested positive for cocaine.
891121:  Drug and Alcohol Abuse Report: Applicant abused cocaine on 891006 based on positive urinalysis. Applicant evaluated by DAPA. Applicant awaiting court-martial.

 891122:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a: In that Aviation Electronics Technician Third Class E_ R. H_, U.S. Navy, Fighter Squadron ONE HUNDRED ONE, Naval Air Station Oceana, Virginia Beach, Virginia, on active duty, did, in the vicinity of Virginia Beach, Virginia, during the period of 3 October 1989 to 6 October 1989, wrongfully use cocaine.

 891128 :  Charges referred to special court-martial.

900405:  Special Court-Martial.
         Charge: violation of the UCMJ, Article 112a: Wrongful use of a controlled substance
          Plea: Not guilty.
 Finding: to Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of $200.00 pay per month for 2 months, confinement for 70 days, reduced to E-2.
         CA action 900705: Sentence approved and ordered executed.
9 00406 :   Drug and Alcohol Abuse Report: Applicant abused cocaine on 891006 based on positive urinalysis . Applicant evaluated by DAPA . Applicant retained and recommended for Level I treatment. Disciplinary action taken: SPCM – awarded 70 days confinement, reduction from E-4 to E-2, forfeiture of $200.00 per month for 2 months.

90061 9 :  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 and misconduct due to drug abuse as evidenced by service record entries.

900619:  Applicant advised of rights and having consult ed with counsel, elected the right to obtain copies of the documents used to support the basis for the separation and appear before an Administrative Discharge Board.

900622:  Branch Medical Clinic, Naval Station Norfolk, VA, D. A. G_, LT, MC, USNR: Applicant shows strong tendency toward addictive personality traits using alcohol and illicit drugs. However, he has taken charge of this and attends AA and NA on his own. Recommend VA system treatment programs be made available to him after separation if he wishes to use them.

900730 :  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with an under other than honorable conditions.
901107 :  Commanding Officer, Transient Personnel Unit, Norfolk, concurred with the findings and recommendation of the Board that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidence d by the service record entries .
901204:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19901220 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 contends that he “did a great job for the Navy other than the drug use.” When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as 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 irrefutable evidence that the Applicant’s conduct during this enlistment in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Nonjudicial punishment proceedings on 19840920 for violation of UCMJ Article 112a Wrongful use of marijuana;
•         Retention warning entry on 19840920 for deficiencies in performance and conduct concerning wrongful use of marijuana;
•         Nonjudicial punishment proceedings on 19841215 for violation of UCMJ Article 116 Breach of peace;
•         Counseling entry for deficiencies in performance concerning failure to meet the physical readiness standards by failing the PRT; and
•         Conviction by special court-martial on 199 00405 for violation of UCMJ Article 112a Wrongful use of controlled substance.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a general characterization of service. An upgrade would be inappropriate; therefore relief is denied.

The Applicant informs the Board that he was young when he started using drugs. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. Most servicemembers begin their service at a relatively young age. It must be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

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 six character references and educational accomplishments for consideration. The Applicant’s efforts needed 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 following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.
Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 of controlled substance .

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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