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

 ex-SR, USNR
Docket No. ND03-00025

Applicant’s Request

The application for discharge review, received 20021004, 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 20030828.  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 – Drug abuse (Possession), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  See attached statement.  As well as supporting documents (Naval records for (Applicant) (Social Security Number deleted) showing various instances where my social security number is wrong.  My records is certain areas have my number listed as (social security number deleted). My correct social security number is as follows, (social security number deleted).

To Whom It May Concern;

I, (Applicant) SS# (social security number deleted); am writing this statement on my behalf in regards to a possible military discharge upgrade.  This statement will contain important facts and accomplishments since my discharge from the US Navy on 1992/07/08.

In the days since my discharge I have been nothing but a model citizen and have not had any occurrences with the law or the public.  I have maintained steady employment throughout my civilian years, and have been going to college to finish my aspirations of obtaining a degree from a secondary school.  From my first days as a civilian, I have worked at Abigail Kirsch Culinary Productions (1992/08/01 - present) as a waiter, and have worked my way up to a supervisor, Kitchen Captain.  I have great responsibility with them in regards to ensuring that the parties are functioning to the best ability, as well as supervising anywhere from 2 to 10 employees at any given time.  I have been awarded the employee of the month award for August 1994, as well as the employee of the year 1994.  While, this job was considered a full time job, I also worked various other jobs to supplement my income.  A few of those jobs are, Club Fit; which is a state of the art health club, I have been employed there since 1997/03/10 to present.  I have been awarded the employee of the month for May 1998 at Club Fit, as well as my important responsibilities of opening and closing the club, as well as handling the cash registers; I have been a soccer coach for 5 years now at Croton-Harmon High School, New York.  I am the Head Coach for the Boys Varsity Soccer team, as well as the Head Coach for the Boys/Girls Varsity Ski Team.  I am currently employed by the Chappaqua Central School District in New York, and am in my second year of employment with this school district.  I am currently a Teaching Assistant at Horace Greeley High School.  I was also the Assistant Head Coach for the Girls Varsity Soccer team last year.

In regards to my service to the public and volunteering, I am currently a volunteer firefighter for the Town of Millwood, New York; and I have volunteered at various organizations such as Gods Love We Deliver (New York), AYSO Soccer (New York), and Big Brothers/Big Sisters (New York).

I am also pursuing my life long ambition of becoming a police officer.  I have taken various tests and have been through various interviews with many departments throughout the Northeast.  Although I am currently in school to finish my degree in Elementary Education, law enforcement is my career goal in life.

While I was enlisted in the United States Navy, my duty station was aboard the USS Goldsborough DDG - 20, Pearl Harbor, HI.  My days aboard the ship were awesome, and I was very awestruck at the size and the work that it entails to maintain such a ship.  I started to befriend those whom said hello, and those that seem to help me out with my job and getting accustomed to my new rate, Boatswain Mate.  The mistakes that I made were few at first, but they seemed to worsen as my time went on.  I really believe it was the fact that I was young (21 years old) and naive to what I was doing or where I was.  On the night of my arrest for possession of marijuana, I was charged with possession and misconduct.  I was then charged and sentenced at a Captains Mast aboard my ship.  I was given my rights and I chose to wave them.  I know now that I should never have waved them, this was due to the fact that I was very scared of what had happened and was very unsure of myself at that time.  On the night of this occurrence, myself and another individual, Radioman T_ N_, were on the beach of an Army base nearby in Waikiki Beach, when he, T_ pulled out of his pocket some marijuana.  At that time, I did have a curiosity to try it, but have never before that time, and have never since.  As he was beginning to light the marijuana, the MP's on the base had been watching us from afar, and then proceeded to arrest us for this offense.  We were then brought back to our ship and tried at a Captains Mast.  I actually never tried the marijuana, nor did I have it in my possession.  I never had a positive drug test, and very sorry for this incident.  I accepted my punishment, but do regret that I did not seek the proper counsel that I was entitled to receive.  Then, in June of that same year, I was arrested for fair evasion, drunken disorderly and illegal entry onto the naval base in San Diego, CA.  On the night in question, myself and T_ N_, and two other individuals whom I can not remember their names, were out in Tijuana, Mexico for a night of fun.  On our way back to the base, were in a taxi cab, and had no money between us.  We all decided that once we got back to the base we would run away from the taxi without paying for our fare.  Once inside the base, we all ran.  The MP had seen this and proceeded to chase us.  Once we were caught, we were arrested for the charges stated earlier in this paragraph.  I received Captains Mast once again, and was ordered to do extra duty, forfeiture of pay, rank demotion, and ship confinement.  Once again, I waived my right to counsel, and accepted my punishment.  If I could do my enlistment over again, I would certainly not do those mistakes again, and I would be more careful with whom I befriend.  I have certainly learned from my mistakes, and have taken these lessons from my punishment into my civilian life.

Since my days after my discharge from the US Navy, I have kept myself busy with work and school, as well as my interests in mountain biking, hiking, reading, and the outdoors.  Although I made a mistake in the Navy, I have learned tremendously from them.  While I was in the Navy, I befriended the wrong people, and was at the wrong place at the wrong time, leading up to an unwanted discharge from the Navy.  Now, I have chosen wisely in regards to my friends and where I decide to relax or have fun.  I am very committed to becoming a better person, as well as a better citizen.  I am currently married to my wife of 2 years, and am committed to her and our life together.
I have enclosed letters of recommendation, as well as copies of letters from police departments in towns that I have lived in, to show that I have not been in trouble with the law.

Thank you for your time and effort on this most important issue.

Documentation

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

Eight pages from Applicant's service record
Criminal record check from Pleasantville Police Department, dated February 6, 2002
Criminal record check from Town of New Castle Police Department, dated February 5, 2002
Criminal record check from Town of Carmel Police Department, dated February 5. 2002
Character reference from Assistant Principal, Horace Greeley High School, dated September 12, 2002
Character reference, undated
Character reference, undated
Character reference, undated
Copy of Applicant's social security card

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910518		Date of Discharge:  920708

Length of Service (years, months, days):

	Active:    01  00  01
	Inactive:  00  01  19

Age at Entry:  20			Years Contracted:  8

Education Level:  13			AFQT:  80

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (2)	Behavior:  2.90 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Possession), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

910708:	Applicant ordered to active duty.

910709:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement:  April 1988, speeding ticket, paid fine $52.00; March 1989, speeding ticket, paid fine $110.00.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

910711:	Applicant briefed on Navy's policy of drug and alcohol abuse.

920505:	NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongful possession of a controlled substance, to wit: marijuana, (2) Wrongful use of a controlled substance, to wit: marijuana, violation of UCMJ, Article 86 (2 specs): Absence from unit, (2) Failure to go to appointed place of duty.
	Award: Forfeiture of $154 per month for 1 month, extra duty for 30 days, reduction to SR.  No indication of appeal in the record.

920505:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920505:	Applicant advised of his rights and having elected not to consult 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.

920508:	Medical evaluation for drug/ETOH abuse found the Applicant to be a drug abuser, not drug/ETOH dependent. [Extracted from Commanding Officer's message dated 920513.]

920513:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (Possession).

920522:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (Possession).

920605:	NJP for violation of UCMJ, Article 134 (3 specs): (1) Drunk and disorderly, (2) Fare evasion (debt, dishonorably failing to pay debt), (3) Unlawful entry.
	Award: Forfeiture of $183 per month for 1 month, extra duty for 15 days.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920708 under other than honorable conditions for misconduct due to drug abuse (Possession) (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).

In the Applicant’s issue 1, the Board determined that the Applicant did not provide sufficient documentation of his post-service accomplishments to warrant an upgrade to his discharge.  Normally, to permit relief, an error in propriety or equity must have occurred during the period of enlistment in question.  No such errors occurred in the administration of this discharge or assignment of the discharge characterization.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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 can be considered.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment record(s), community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, the applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

After review of the Applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 9.3 of reference (a), the Board determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at time of issuance.

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.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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