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NAVY | DRB | 2006_Navy | ND0600411
Original file (ND0600411.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND06-00411

Applicant’s Request
The application for discharge review was received on 20060123 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to gener al (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20061116 . 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 a pattern of misconduct .



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issue s, as stated on the application :
“ The Navy gave me a under other than honorable conditions. Also, the Navy never offered me a drug program. I’m in a drug program now. I’m also a war time veteran. I was in Operation Enduring Freedom and Afghanistan .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 The Salvation Army Bell Shelter, J_ R_, Case Manager, dtd January 12, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)    19991105 - 200 00817       ELS
         Inactive: USNR (DEP)     20010207 - 20010214       COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20010215              Date of Discharge: 20040610

Length of Service (years, months, days):

          Active: 0 3 0 3 24
         Inactive: None

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

Age at Entry: 1 9

Years Contracted: 4 ( 16 -month extension)

Education Level: 12                                 AFQT: 32

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

 Performance: 3.3 (4 )     Behavior: 2 . 5 ( 4 )        OTA : 3.04

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Unit Commendation Medal, Sea Service Deployment Ribbon.


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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

000 809 :  Pre-service waiver granted for marijuana use while in DEP .

011231:  NJP for violation of UCMJ, Article 128: Simple assault.
         Award: Forfeiture of $200.00 per month for 2 months (suspended for 6 months), extra duty for 40 days (30 days suspended for 6 months). No indication of appeal in the record.

 011231:  Retention Warning: Advised of deficiency (Commanding Officer Nonjudicial Punishment on 012331 for violation of the UCMJ, Article 128, Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020120:  Forfeiture of pay and extra duty awarded at NJP on 011231 vacated due to continued misconduct.

 0 40521 :  NJP for violation of UCMJ, Article 112a : In that Torpedoman’s Mate Third Class J_ E. L_, U.S. Navy, Training Support Center, Great Lakes, Illinois, did, somewhere in the Continental United States, on about between 10 March 2004 – 15 March 2004, wrongfully use Amphetamine and Methamphetamine, a controlled substance .
         Award: Forfeiture of $ 792.0 0 per month for 2 month s , restriction and extra duty for 45 days , reduction in rank to AA . No indication of appeal in the record.
0 40521 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct – drug a buse and misconduct – p attern of m isconduct.
0 40521 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040524:  Applicant physically qualified for separation.

 0 40527 :  Commanding Officer, Training Support Center, Great Lakes, recommende d discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to drug abuse. Commanding Officer’s comments: “TMSA L_’s positive urinalysis for amphetamine and methamphetamine clearly undermines good order and discipline. As a result of his demonstrated unwillingness to conform to the rules and regulations, I find no potential for further Naval service. Therefore, I recommend TMSA L_ be separated with a discharge characterized as Other Than Honorable.”
0 40602 :  Commander, Navy Region Midwest , d irected the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040610 by reason of misconduct due to a pattern of misconduct (A ) 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 ( B and C ).

The Applicant implies that his discharge is improper since the Navy never offered him a drug program. There is clear evidence in the service rec ord that the Applicant used illegal drugs. Indeed, the Applicant received nonjudicial punishment on 20040521 for violation of UCMJ Article 112a Wrongful use of controlled substance ( amphetamine and methamphetamine ). On 20040521, the Applicant was notified of the command’s intent to discharge by reason of misconduct due to drug abuse and misconduct due to pattern of misconduct. On 20040602, Commander, Navy Region Midwest, directed th e Applicant ’s discharge by reason of misconduct due to pattern of misconduct. In the same authority, the command was directed to offer appropriate treatment prior to separation if the Applicant was determined to be drug/alcohol dependent. There is no evidence in the record, nor has the Applicant produced any evidence, which shows that the Applicant was declared dependent warranting treatment. The Board therefore concluded that the Applicant’s character of service is proper and equitable as issued. Relief denied.
The Applicant further implies that his discharge is inequitable in light of his service in Operation Enduring Freedom and Afghanistan. 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 his time in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Nonjudicial punishment proceedings on 200 1 1231 for violation of UCMJ Article 12 8 Simple assault ;
•         Retention warning entry on 200 1 1231 for deficiencies in performance and conduct concerning violation of UCMJ Article 128 ; and
•         Nonjudicial punishment proceedings on 20010521 for violation of UCMJ Article 112a Wrongful use of amphetamine and methamphetamine.
 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.

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 a letter from the Salvation Army Bell Shelter for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, 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 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 post-service accomplishments or any other evidence related to the discharge at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
C . 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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