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

 ex-OSSN, USN
Docket No. ND01-00297

Applicant’s Request

The application for discharge review, received 010116, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010829.  After a thorough review of the records, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I do not think my other than honorable discharge was unfair because:

- The main reason was the urine sample was taking and they say it was lost, until the same day they found out I was not medically able to stay in the U.S.N.

- The above statement makes it unable to receive disability from the military.

- The (3) head injuries I received were during active service.  The last one near fatal.

- The other (2) head injuries received lead to the last one, which I think was due to mistreatment by military personnel.

*I did not leave the military the way I enlisted.  I am damage for life.  No type of discharge should be put in front of life.

- I would send my medical records, but they are with Veterans Affairs.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	941017 - 950621	COG

Period of Service Under Review:

Date of Enlistment:  950622		Date of Discharge:  990614

Length of Service (years, months, days):

	Active:    03  11  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  75

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  1.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, NUC

Days of Unauthorized Absence:  23

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

970103:	Applicant to unauthorized absence 0645, 3Jan97.

970127:	Applicant from unauthorized absence 0232, 27Jan97 (23 days/ surrendered).

970127:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 3Jan97 to 27Jan97 (23 days), violation of UCMJ, Article 87: Missing movement on 21Jan97, violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

970127:	Retention Warning:  Advised of deficiency (Not found in service record.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from CO's letter dated 4May99.]
	
980915:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample received 980908, tested positive for amphetamine/methamphetamine.

990209:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance on 8Sep98.
	Award: Forfeiture of $612 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN.  No indication of appeal in the record.

990414:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment and misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.

990414:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990414:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse and a pattern of misconduct and warrants separation.  By unanimous vote, recommended discharge due to with an other than under honorable conditions; however, by a vote of 2 to 1, recommended discharge due to pattern of misconduct with an under other than honorable conditions.  The dissenting member's comments:  "I do not feel his outbursts justify an other than honorable discharge.  No physical violence or threats took place, just obvious lack of maturity."

990504:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding officer’s comments (verbatim): Operations Specialist (applicant) was below average Sailor who required inordinate guidance and counseling during his tour aboard LAKE CHAMPLAIN.  On 4 January 1997 OSSN (applicant) commenced an unauthorized absence from the LAKE CHAMPLAIN in which he missed ship's movement on 21 January 1997.  OSSN (applicant) surrendered himself on board LAKE CHAMPLAIN, and was subsequently taken to Commanding Officer's NJP and awarded 45 days restriction, 45 days extra duty.  On 8 September 1998 a random urinalysis was conducted by LAKE CHAMPLAIN's Chief Master-at-Arms in which OSSN (applicant) tested positive for methamphetamine.  However, in October 1998 SN (applicant) suffered a severe head injury and was hospitalized in San Diego and Palo Alto, California.  Upon OSSN (applicant's) release from the hospital, he was again taken to Commanding Officer's NJP for Violation of the UCMJ, Article 112a, Wrongful Use of a Controlled Substance.  OSSN (applicant) was awarded 45 days restriction, 45 days extra duty, forfeiture $612.00 pay per month for 2 months and reduction to paygrade E-3.  On 14 April 1999, an Administrative Board was held in the case of OSSN (applicant).  The Administrative Board found misconduct recommending separation with an Other than Honorable discharge.  I concur with the findings of the board.  OSSN (applicant) has no potential for further service and due to his actions demonstrated an inability and unwillingness to conform to military regulations.  In keeping with the Navy's zero drug tolerance policy I strongly recommend that he be administratively separated from the Naval service with an Other Than Honorable discharge.

990525:	COMCARGRU SEVEN directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 990614 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to the applicant’s issue, the Board has reviewed the applicant’s service and medical records and determined that to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.  In addition, the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023