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

 ex-HA, USN
Docket No. ND02-01063

Applicant’s Request

The application for discharge review, received 020725, requested that the characterization of service on the discharge be changed to honorable.  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 030414.  After a thorough review of the records, supporting documents, 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To Whom It May Concern:

My name is (Applicant); on December 11th 1997 I came into the Untied States Navy with the highest of aspirations.  On May 24h I left the Navy heartbroken and cheated.

When I entered basic training in Great Lakes, Illinois I was seared, nervous, but yet I still so proud of myself.  I was following in the footsteps of my father, who followed his father steps into the Finest Navy in the world.

While in basic training I was a model recruit, I was a section leader for the duration of training.  After basic training ended, my orders sent me to Hospital Corpsmen "A" school at NTC, Great Lakes.  There I graduated with honors.  From NTC my orders then took me to Naval Hospital Camp Pendleton for three months of temporary duty until I classed up for Field Medical Service School.  There I also graduated with honors.  From FMSS I went to Naval Medical Center, San Diego also for three months of temporary duty, until I classed up for Preventive Medicine Technician school.  I graduated from PMT School on August 25th 1999.  Before graduating I was issue orders to Naval Ambulatory Care Center, Newport, Rhode Island, where I would carry out my PMT duties.

While at NACC Newport, RI I received Non-judicial punishment for assault charges.  I carried out my punishment, and when I returned to NACC Newport, I volunteered myself to the Anger management counseling with social workers.  I also found the hidden reason for my short temper.  Dr. G M in the NACC Mental Health clinic diagnosed me with major depression disorder, social anxiety disorder, and obsessive-compulsive disorder.  While under going treatment for my disorders I was a key witness in an NCIS investigation on a fellow corpsman at NACC.  They were investigating connections he had with drug dealers, he also was a user/dealer.  Since I told NCIS all I know about this corpsman he lied to NCIS and told them that I possessed illegal steroids in my vehicle.  NCIS investigated this matter and came up with nothing due to the fact that I did not possess any drugs.  However, they were also investigating yet another lie that I used illegal steroids while stationed in San Diego, CA.  I admitted that I did use sports supplements while training for FMSS, all legally purchased at GNC.  Due to these lies and allegations I had to attend Captain's Mast, however, there is a clause and an article in the UCMJ that states any offence more than 2 years prior cannot be held up.  Since these allegations were from 1998 and I was tried in 2000 well over two years prior, I was still given an other than honorable discharge.  So I'm confused how can this so-called Captain (G_ A_, ret.) discharge me from the Navy on these grounds?  That is the reason for my inquiry.  I was not given the proper discharge, or the proper procedure, I was never given the proper opportunity for an Admin board to correct my discharge or retain me in the Navy I loved.

I feel that the type of discharge I was handed is totally unjust and wrong, considering my ratings and my impeccable work ethics.  The fact that other individuals have face the same captain on several counts of article 112a of the UCMJ, where retained in the Navy, where do this captain's morals and obligations lye?  The military has zero tolerance for drug use.  So tell me why he has taken this policy and distorted it into his own policy, he obviously has tolerance for illegal drugs in the military.  This proves that I was unfairly singled out and discharged for unjust reasons.  I should still be in the Navy on active duty defending my country in a time of desperate need.  Not only did he hurt me, but also he hurt the country I was giving my life to.  Thank you for your time.

Respectfully, (Applicant) 

Documentation

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

Character reference from a Captain, USNR (Ret.), dated June 14, 2001
Letter from Rear Admiral, dated January 10, 2000
Letter of Appreciation from Rear Admiral, from December 9, 1998 to February 5, 1999
Certificate of Outstanding Performance, dated June 30, 2000
Letter of Appreciation, dated June 5, 2000
Evaluation Report and Counseling Record, dated July 15, 2000
Character reference from Applicant's father, dated August 19, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	971125 - 971210	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  971211		Date of Discharge:  010524

Length of Service (years, months, days):

	Active:    03  05  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  2.20 (5)		OTA:  2.97

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation (2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

000620:	NJP for violation of UCMJ, Article 128: Assault.  Dismissed by CO at mast.  [Extracted from Commanding Officer's letter dated 010502.]

001103:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order issued by Captain, to wit: a military protective order, dated 000925, concerning his contact with HM3, did on 001018 wrongfully attempt to speak with HM3, violation of UCMJ, Article 128: Assault HM3 at the BEQ on 2000, 000924.
	Award:  Admonition in writing, forfeiture of 1/2 months pay per month for 2 months, correctional custody for 30 days, reduction to HA.  No indication of appeal in the record.

001103:	Applicant found fit for confinement.

001128:	Retention Warning:  Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 128 - Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010323:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, violation of UCMJ, Article 112A: Wrongful use of controlled substance (dismissed due to statue of limitations for NJP), violation of the UCMJ, Article 128: Assault.  [Extracted from Commanding Officer's letter dated 010502.]
	Award:  Restriction and extras duty for 45 days.  No indication of appeal in the record.

010413:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to pattern of misconduct.

010413:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010502:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and pattern of misconduct.  Commanding Officer’s comments (verbatim):  [HA C_ (Applicant) was processed for administrative separation due to drub abuse and pattern of misconduct.  In the one and a half years he has been at this command, HA C_ (Applicant) has repeatedly been a problem.  Every avenue to help support this sailor has been utilized to no avail.  He has demonstrated that he has less than adequate control over his behavior and cannot or will not comply with the rules and regulations of the United States navy, nor meet the standards expected.  He has shown a complete lack of respect for other individuals, his chain of command, and for the Navy’s core values.  His presence in the command has a detrimental effect on good order and discipline and on the morale of the other troops.  His repeating pattern of violence has no place in the Navy and leave me with little choice but to process him for separation.  I have requested that he be separated from the naval service with an other than honorable discharge for drug abuse and pattern of misconduct.]  

010516:	COMNAVREG NE Groton, CT 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 010524 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  Furthermore, the Board disagrees with the Applicant’s assertion that his overall service record warrants an honorable discharge. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a sailor.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for assault upon a petty officer, an offense triable by court-martial.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  An upgrade to honorable conditions would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief denied. 

Issue 2:  Regarding the charge of illegal drug use, it was dismissed at the NJP due to expiration of the statute of limitations.  However, there is no time limitation between the commission of an offense and the initiation of administrative separation proceedings.  Additionally, a military conviction at NJP is not necessary to process a Sailor for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The Applicant used illegal drugs and warranted processing for separation, normally under other than honorable conditions.  Furthermore, the Board disagrees with the Applicant’s claim that he was never given the opportunity for an Administrative Board.  The Applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 2001.  Relief denied. 

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.  However, 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.  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.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

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 additional documentation to support any claims of post-service accomplishments at that time.  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), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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 "afls14.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