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

 
ex-ETSA, USN
Docket No. ND03-01004

Applicant’s Request

The application for discharge review was received on 20030521.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040415.  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: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The issue leading to my voluntary action which caused my discharge was the welfare of my biological child, R___ J. N____ D.O.B. 5-4-93, who resided in New Jersey at the time discharge.  As stated at my Admin Board, “I tried to get time to go to N.J. for the purpose of seeking custody of my son through family court”.  The same response was repeatedly was you can’t miss time from school.  When I asked about using leave, ET1 G___ said, “submit a chit, but when I deny it, it won’t go up the chain of command, and besides, you are only an E-3 and you are not eligible for housing”.  After the third time that I spoke to my son and he informed me of the abuse (Physical & Emotional) that he was enduring, I felt that I was letting him down as a parent.  That was when I spoke to my instructors at school about a hardship discharge and was informed they no longer existed.  I would also stipulate that during all this time I was a duty section leader of 100 to 140 students all my prior classes I graduated with the lowest grade of 81.9, 2 classes with distinction, and the last class.  Before this incident ESM operator, I graduated top of my class after my son told me again he wanted to live with me, I was so upset that I made a big mistake and turned to a bottle of alcohol instead of talking to someone.  This is what impaired my better judgment and ultimately led to my using an illegal substance to fail a urine test.  I made the biggest mistake of my life with this judgment I made that afternoon.  I was excelling in all of my efforts to be the best sailor in the Navy.  As stated earlier I was a duty section leader of 100 to 140 student whom I guided in their adjustment to military life, and trained as to qualify to stand watches throughout the SUB-BASE.  While on limited duty board I was retained by my code N5 where I was the Admin Assistant working for ETCS M___ and Commander B___ directly.  I also was just frocked to ET3, after passing the advancement exam.  I was on my second period of limited duty and was told by Orthopedics at the NACC Groton that within a year I would most likely be boarded out because of my disability.  The fact of being boarded out shortly shows that if I was just looking for a way out, I already had one, and with disability pension as well.  This was not what I wanted at all.  I wanted to get back to full-duty so I could serve my country with honor, courage, and the full commitment that I had upon entry into the Greatest Navy in the world.  All of my service was honorable.  Before this incident, and during restriction, and also the remaining time after restriction until discharge.  My code said after being seen in restriction I could no longer work for N5.  It was then that I cross-rated and worked flawlessly for RN1, ENS, J____ and SK1 H___ until my separation.  During this period I was tasked with doing credit card certs in the $25,000 to $45.000 range, this trust put in me after the fact should speak for my honor.  If I could be reinstated and finish with my enlistment I would do so with honor, courage, & commitment.  I realize I can no longer serve my country on active duty due to my mistake, but I continue to exercise the Honor, Courage, & Commitment instilled in me in every aspect of my life.  As I already stated I wanted time to seek custody of my son R____ N___.  I am including some documentation proving that I did seek custody of him and was finally given custody in December 2002.  I am also including a copy of my marriage certificate to show the board that this one mistake was not something that was more that a one-time mistake.  I also included copies of my paystub from my full-time job which I have been at for more that one year.  I would like to say I no longer consume alcohol for any purpose, since July 2001.  I am currently trying to get into college and would like to earn a degree in criminal justice and hopefully become an Detective for the CT State Police.  I am requesting an upgrade to honorable discharge because: I feel I do deserve one.  I really want to follow my goals to law enforcement.  I served my country honorably except one stupid mistake.  I don’t want my son, when he is older to find-out why I did what I did to get out.  This request is submitted respectfully”

Documentation

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

Copy of License and Certificate of Marriage
Copy of Leave and Earning Statement
Letter from Department of Human Services Division of Youth and Family Service dated June 13, 2002
Copy of Case Assessment Application
Copies of Court Orders (4)
Medical Board Information (3 pages)   
Family Photograph

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991214 - 000110	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  000111		Date of Discharge:  020131

Length of Service (years, months, days):

	Active:    02  00  21
	Inactive:  None

Age at Entry:  30			Years Contracted:  4 (12 months extension)

Education Level:  10			AFQT:  59

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks Available for review.

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

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

Chronological Listing of Significant Service Events:

010719:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 010711, tested positive for [cocaine].

010808:	NJP for violation of UCMJ, Article 92: (2 Specifications), Specification 1: Violated a lawful general regulation to wit: SECNAVINST 5300.28c dated 990224, by wrongfully possessing drug paraphernalia, to wit: 2 glass tubes used for smoking crack cocaine, Specification 2: Violated a lawful general regulation to wit: SECNAVINST 5300.28c dated 990224, by wrongfully possessing drug paraphernalia, to wit: steel wool used as a filter for glass tubes cocaine pipes, violation of UCMJ, Article 112a: Did at or near Naval Submarine Base New London, Groton, Connecticut, on or about 010706, wrongful use cocaine.
Award:  Forfeiture of $607.00 pay per month for 2 months (suspended for 2 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

010820:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010820:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

011016:	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, that the misconduct warranted separation, and recommended by vote of 2 to 1 applicant be discharge general under honorable conditions.

020117:	COMSUBGRU TWO directed the Applicant's discharge general under honorable conditions by reason of misconduct due to drug abuse (use).

020404:	Commanding Officer recommended discharge general under 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 20020131 general under honorable conditions for misconduct due to drug abuse (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.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 33, effective 16 Jul 2001 until 21 Aug 2002, 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