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NAVY | DRB | 2006_Navy | ND0600813
Original file (ND0600813.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-RMSA, USN
Docket No. ND06-00813

Applicant ’s Request
The application for discharge review was received on 20060509 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a documentary record discharge review. Advised by the NDRB that he was approaching the 15-year limit on the NDRB’s review jurisdiction and offered the opportunity of a personal appearance hearing, the Applicant again requested 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 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 Honorable Conditions (General) 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 HONORABLE CONDITIONS (GENERAL),” and Block 26, Separation Code, should read: “GKQ.” The C ommander, 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

None

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 for discharge of June 20, 1991 (2)
Applicant ’s DD Form 214 for discharge of March 5, 1988 (2)
 Applicant ’s DD Form 214 for release from active duty on February 9, 1982 (2)
Sixty-two pages from Applicant ’s service record
Letter from Applicant , dated January 17, 2007
Certificate in recognition of 15 months of sobriety, dated December 6, 2006
Certificate of completion of the anger management course, dated January 25, 2006
Certificate of completion of Four Basic Computer classes, dated November 30, 2005
Certificate of participation in the Healing for Damaged Emotions, dated November 3, 2005
Certificate of completion of the Developing Capable People course, dated December 27, 2005
 Certificate of participation in the Book Club, dated January 25, 2006
Certificate of participation in the Book Club, dated February 22, 2006
Certificate of participation in the Book Club, dated March 21, 2006
Certificate of participation in the Book Club, dated March 22, 2006
Certificate of completion of all requirements for Level 5, dated April 12, 2006
Certificate of completion of the Six Month Rehabilitation Program, dated May 31, 2006
Certificate of Baptism, dated July 9, 2006
 Salvation Army ARC Man of the Month Special Recognition award, dated August 16, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Ina ctive: USNR-R M         19810409 - 198 1 072 6       COG
         Active: USNR-R M   19810727 - 19820209      HON
          Inactive: USNR-R M         19820210 - 19830727      HON
         Inactive: USNR (DEP)     19830728 - 19831031       COG
         Active: USN      19831101 - 19880305       HON
Period of Service Under Review :
Date of Enlistment: 19880306              Date of Discharge: 19910620

Length of Service (years, months, days):

         Active: 0 3 0 3 15 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              7 day s

Age at Entry: 26

Years Contracted: 4
Education Level: 12                                 AFQT: 29

Highest Rate: RM2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3. 4 ( 4 )                        Behavior: 3.5 ( 4 )                 OTA: 3 . 4 5

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal ; Navy “E” Ribbon ; Meritorious Unit Commendation (2); Overseas Service Ribbon (2); First Good Conduct Award for period ending 87Oct31; Sea Se rvice Deployment Ribbon


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

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

880306 :  Reenlisted this date for a term of 4 years.
881012:  Retention Warning: Advised of deficiency (You recently failed the Command’s Physical Readiness Test because of insufficient number of pushups.) This is your first consecutive failure where you either failed the PRT or were above Body Fat Standards. Three consecutive failures may result in separation from naval service.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
890928:  Retention Warning: Advised of deficiency (Failed PRT (First Cycle), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
891011:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 890927, tested positive for THC.

 891013:  Drug and Alcohol Abuse Report: Marijuana abuse, 1-3 times per month, ashore off-duty. Random urinalysis on 891013. Comments: Positive for THC. Petty Officer K_ ( Applicant ) has been referred to special court martial for drug abuse. His past performance has been good. However, he is not recommended for further military service.

891023:  CAAC evaluation: Applicant screened due to a positive urinalysis for THC. Applicant appears to be psychologically dependent on alcohol and is in need of a Level III program. Recommend Applicant be admitted to an Alcohol Rehabilitation Department (ARD) following confirmation of dependency assessment by a Medical Officer or Clinical Psychologist. It is also recommended that Applicant be referred to a Naval Hospital for a psychiatric evaluation, be placed on a 2x4 urinalysis surveillance program, placed on a supervised Antabuse regimen, attend two alcoholics anonymous meetings weekly, receive command Level I counseling and be held strictly accountable for his actions.

 891024:  Charge preferred against Applicant for violation of UCMJ , Article 112a : Wrongfully use marijuana on 890924.

891128:  Applicant completed 36 hour NADSAP Personal Responsibility course.

891129:  Special Court Martial:
         Charge: violation of the UCMJ, Article 112a:
         Specification: Wrongful use of marijuana.
         Findings: to Charge and specification thereunder, guilty.
         Sentence: Confinement for 7 days, forfeiture of $300.00 per month for 2 months, reduction to E-4.
         CA 900106: Sentence approved and ordered executed.

891129:  Applicant to confinement at U.S. Naval Station Brig, Subic Bay.

891205:  Applicant from confinement ( 7 days).
900109:  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.
900628:  Applicant receives letter of substandard performance from Commander, Naval Military Personnel Command (CNMPC) advising that improvement is mandatory. Applicant did not desire to make a statement.

900727:  NJP for violation of UCMJ, Article 91 (3 specs):
          Specification 1: Fail to obey a lawful order on 0905, 900522, to wit: to report to the Command Quarterdeck for a urinalysis before securing time (1100) .
         Specification 2: Fail to obey a lawful order on 1100, 900522, to wit: to report to the Command Quarterdeck for urinalysis.
          Specification 3: Fail to obey a lawful order on 1100, 900718, to wit: to report to the Quarterdeck for urinalysis.
          Award: Forfeiture of $ 481.00 per month for 1 month, restriction for 3 0 days, reduction to E- 3 . No indication of appeal in the record.
900905 :  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.

900907 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
90092 7 :  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed commission of a serious offense and drug abuse , that such misconduct warranted separation, and recommended discharge with a under honorable conditions (general).
901024 :  Commanding Officer , U.S. Naval Communication Station, Philippines, recommended discharge with a under honorable conditions (general) by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

901106:  CNMPC request ed drug dependency status.

901119:  Medical evaluation by P_ A_, LT, MSC, USNR, Psychology .
         Referred for dependency evaluation IAW current d irectives for administrative separation of member with diagnosis ETOH or drug dependency.
          Diagnosis:
         AXIS I: Alcohol dependency, mild.
         Cannabis abuse.
         AXIS II: Personality disorder not otherwise specified with histrionics, passive-aggressive and obsessive compulsive features.
         Plan: (1) As noted in 900829 eval patient should be afforded opportunity to utilize VA treatment for ETOH dependence as part of ADSEP. Patient plans to relocate to Jacksonville, FL. Possible treatment at VA closest to this location is recommended.
         (2) No further follow up required with psych.

 901129 :  CNMPC directed the Applicant 's discharge with a under honorable conditions (general) by reason of misconduct due to commission of a serious offenses. Directed that Applicant be offered in-patient treatment at VA hospital.

901206:  Applicant acknowledged right to request treatment at a Veteran’s Administration hospital nearest to home of record or place of residence. Applicant elected treatment.
910219:  NAS Jacksonville, FL advises CNMPC that Applicant’s discharge held in abeyance pending disciplinary action for violation of UCMJ, Article 112a.
910225:  NJP for violation of UCMJ, Article 112a (2 specs):
          Specification 1: Wrongful use of marijuana.
         Specification 2: Wrongful use of cocaine.
         Award: Forfeiture of $ 422.00 per month for 2 month s , restriction for 45 days, oral admonition, redu ction to E- 2 . No indication of appeal in record.
910308:  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 and misconduct due to a pattern of misconduct.
910311:  Drug and Alcohol Abuse Report: Cocaine abuse. Unit sweep urinalysis on 910211. Physician found Applicant dependent. Commanding Officer recommended separation via VA hospital. Comments: SNM was referred to DAPA after testing positive for THC during a unit sweep urinalysis on 910211. SNM was seen by a physician and was diagnosed dependent on drugs. It was determined that SNM has no potential for future naval service. SNM is being processed for administrative separation.

 910319:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
910402:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed commission of a serious offense and drug abuse and a pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

910404:  Defense Counsel submitted letter of deficiency.
910503:  Commanding Officer , Naval Air Station, Jacksonville, recommended discharge under other than honorable by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse and misconduct due to a pattern of misconduct.

910530:  BUPERS request ed reason of delay in transfer and discharge of Applicant .

 910606:  NAVCOMMU CUBI PT RP message to BUPERS : “ Records available indicate Applicant underwent psychiatric screening and evaluation at San Miguel in Dec 90. After release from treatment Applicant elected treatment at INCONUS VA medical center prior to discharge as authorized. Applicant was retained on board NAVCOMMSTA Phil while PSD San Miguel arranged for VA medical center bed quota and confirmed seat on MEDEVAC flight to and across CONUS. File copy of transfer orders indicates Applicant should have been discharged upon completion of VA treatment. ”

910614:  BUPERS denie d approval of recommendation for separation with characterization of service as under other than honorable conditions. Determined that excessive delay in discharging Applicant subsequent to previously approved characterization of service as general not warranted. Directed e xecut ion of general discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19910620 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under honorable conditions ( general ). 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 an d D).

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. A general 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 a retention warning, 2 nonjudicial punishments proceeding for violations of Article 91 and 112a of the UCMJ, and a special court-martial for violation of Article 112a of the UCMJ. The fact that the Applicant was not afforded Level III in-patient treatment during his service does not excuse the misconduct for which he was separated. Further, the record clearly shows that the Applicant was offered VA treatment at separation, as required. 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 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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. Relief denied.

The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago. 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 91 , Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer .
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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