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

 
 ex-MSSA, USN
Docket No. ND03-00829

Applicant’s Request

The application for discharge review was received on 20030409.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Chicago, IL  60651 and a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application the Applicant convert to a personal appearance hearing and obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303.  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 received 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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I A_ M_ (Applicant) is writing for an upgrade of my discharge from OTH to Honorable under medical conditions from my ACL operation.  I was on board the U.S.S CONSTELLATION CV-64 May 29, 1993.  I have been having problems with my left leg every since my operation.  I have been in pain for the last 10 years.  I was not given any legal help and even when I tried to get help I was shot down from the Legal Department.  I was discharged on a word of a dead man.  How can the word of a dead man drug user get me discharged five months after his death.  I was never caught with any drugs or used drugs while I was in the Navy form 5/90 / 5-93.  This was a bad set up and it hurt my mind, body & life.  I was not never charged with any crime in Jan of 1993 or even talked about while in Naval Station P.A. 1993.  If I done all of this I was suppose to be under arrest under the UCMJ this never happen while I was in Phila PA Naval Station.  The NIS had all this information in Jan 93 but their agent is dead he was caught with drugs not me.  Why did the N.I.S. wait so long if they had this information my captain mast was unfair and prejudged I was not even given any help.  I was in Captain Mast for 90 seconds asked one question How do you Plead “NOT GUILTY”  The captain said “to cool” and was charged and convicted.
The Issues of my discharge was wrong and unfair.  I was not charged with any crime while I was at Naval Station Phila., Pa.  I was never been arrested or any word was said to me by my command.  Now under the UMCJ I was treated unfair and Wrongfully charged By my command CV-64 U.SS Constellation.  The N.I.S. Lied and used the word of a Dead Drug user, I was never shown any Evidence-Data presented to a court or jury to Substantiate claims of allegations, including testimony, records, or objects.  None of this was Presented to me or my command on Jan 26, 1993 or two months while I was still in Naval Station P.A., Phila.  The N.I.S. Never came clean Because this was trumped up and waited until five months later when I couldn’t get help from a “Real” lawyer or Representative.  I was not even given any help from legal Dept. CV-64 from Lt. D_ K_ A_ while in mast he couldn’t even look at me because I cook for him in my face.  My Chief Even didn’t know about this Lie and Even the XO said he needs more information but this is what was said.  While I was going through the Drama of Captain Mask I was trying to get help from Naval Station Jacksonville, Florida Lt. D_ was not willing to help me at any request and I seen him two times.  I was took to Mask by the XO and CO.  Their mind was made up before I even came in to the Room.  I was not given and Urinalysis and under the U.M.C.J. if charged and accused of a Drug charge, I was supposed to have a urinalysis but not was given the command Doctor told me I was clean from my Blood he took and got a “clean” Bill of health “Clean" This guy said I smoked and he lied on me trying to get his self out of trouble.  He died 2-69-93 while I was in Chicago Il. From Feb 1, 1993 to Feb 13, 1993.  D_ R_ was supposed to be a Special Agent, But he was a drug using Sailor.  I have never met S/A S_ or S/A S_ if they had Recorded conversations where are they at or Not Presented to me or my command and this statement used against me is a lie and if I sold him drugs twice why was I not arrested when I came to work on Base Naval Station Phila. Pa when I reported to work on Jan 27, 28, 29, 30, 31, 1993 They had these drugs and recorded testimony of Me?  Why did it take five months Later when I was under Sea or Away when the Captain has all the Power to do what He wants
Now My Captain Mask was Prejudged and unfair Captain M_ N_ was wrong and we were in a change of command.  This unfair and Racism I faced, was wrong I walked in the room in front of Seven to Nine officers who already Made up their Minds up and No crime was committed except on me this crime was unfair and wrong it changed my life.  I walked in about face to the captain I had my charges read and asked “one” question “how do you plead”?  Asked by Captain N_ I said “Not guilty”!  Captain N_ said “Too cool”.  That’s all he said “Too cool”.  This lasted about 1 ½ minutes long.  So their mind was made when I walked into the Room.  45 x 45 x 2 ½ months pay X2.  But this is what happens and I never got a dime from the time I was convicted of a crime I didn’t commit.  Now these questions have Been in My Mind for Ten years and the pain in my legs have gotten worse and worse as the years went By.  I was treated with Racism and Never given a chance to speak to out New Captain R_ They took me and made me work in the Boiler Room clean out Dirty Stuff from the Bottom of the ship and Pushing over a ton of steel around the Ship from one place to another.  Took from my MS Job and put in Dirt.  When I was in My 30 day of restriction they told me I could leave or keep working hard so I felt that this was unfair and wrongfully treatment So I Bowed out gracefully and said I could Deal with them from the Streets to get a Better Discharge from the People looking in not the Racism I was being treated.  They took my last check and said I get nothing but a bus ticket.  What happen to my money I worked “extra hard for I worked for on Restriction and Extra Duty.
This is the most important part the ACL operation I had done in Ft Dix N.J. was ok at first but I feel the Pins and staples are lose in my leg and the other one is one Bone on Bone and it hurts real Bad Every day.  I need Medical help and I really need Someone to listen and help I Never got from no one in the Navy.  My command was wrong and unfair I hope I can get help from the Navy Board.  To Give me a Honorable Discharge on Medical.  Thank you.

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable to that of Honorable.

The FSM served on active service from May 7, 1991 to May 25, 1993 at which time he was discharged due to Misconduct (Commission of a Serious Offense).

The FSM contends the current discharge is improper because “he was charged / discharged on the word of a deceased NIS Officer. That the NIS officer was caught with drugs not him, that he was refused legal counsel and the Captain’s Mast was unfair and prejudiced. 

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,.”

Documentation

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

Letter from Applicant, dated March 1, 2003
Letter from Applicant, dated January 3, 2003
Consent to release information form, dated May 20, 2001
VA Form 21-4142
VA Form 21-526, Veterans’ Application for Compensation or Pension
Rebuttal to Captain, dated April 27, 1993 (3 pages)
Letters from the U.S. Congress and Congressman, dated October 7, 1993, August 2, 1993, August 2, 1993, August 31, 1993
Letter from Applicant, dated May 7, 1993
Events on the USS Constellation CV-64 (4 pages)
Medical records from ACL and hurt in boot camp (22 pages)
Criminal Investigative Service Report (2 pages)
Letter from Applicant, dated July 23, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900626 - 900924	ELS
		   USNR (DEP)	910403 - 920506	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910507		Date of Discharge:  930525

Length of Service (years, months, days):

	Active:    02  00  19
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  14			AFQT:  41

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  2.80

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 – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910507:	Applicant briefed on Navy's policy of drug and alcohol abuse.

920515:	NJP for violation of UCMJ, Article 117: Provoking speeches or gestures, violation of UCMJ, Article 91: Insubordinate conduct towards a non-commissioned petty officer, violation of UCMJ, Article 121: Larceny and wrongful appropriation.
	Award:  Forfeiture of 7 days pay, restriction and extra duty for 14 days, reduction to E-1 (suspended x 3 mos).  No indication of appeal in the record.

930223:	Retention Warning: Advised of deficiency (Insubordinate conduct towards a non-commissioned petty officer and provoking speeches or gestures on or about 920511 and larceny and wrongful appropriation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930422:	NJP for violation of UCMJ, Article 112A (2 specs): Wrongfully distribute some amount of cocaine and marijuana on 930126 and 930128.
	Award: Forfeiture of $456 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSA.  No indication of appeal in the record.

930430:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930430:	Applicant advised of 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.

930506:	Applicant found not dependent on drugs.

930510:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

930519:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930525 under other than honorable conditions for misconduct due to commission of a serious offense (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 and 2:  The Applicant’s issues are without merit.  There is credible evidence in the record that the Applicant was involved with illegal drugs.  Mandatory processing for separation is required for sailors who are involved with illegal drugs.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.  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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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