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

  ex-OSSR, USN
Docket No. ND04-00476

Applicant’s Request

The application for discharge review was received on 20040121.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050926.  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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was improper because it involved Drug use and no course of Rehabilitation was offered or discussed.  I have since gone though Drug Rehabilitation and am currently residing in a Spiritual Transformation Program.  This will help me to better the life that my family and I have.  There were many racial Issues on board The ship that Led up To my Discharge, Even up To The point where an Equal Opportunity Officer had To get involved.  This was Due To an incident between an Executive Officer and myself.”

Additional issues submitted by Applicant’s representative (American Legion):

“1. (Equity Issue)  This former member avers that racial discrimination was a contributing factor to his misconduct of record and the fact that he did not receive rehabilitation for his drug use.  

2. (Equity Issue) This former member also requests that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application. 
In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issues in supplement to this Applicant’s petition.”

Documentation

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

Applicant’s DD Form 214 (2)
Applicant’s service related documents and medical records (134 pages)
Character Reference Letter from Rev. J_ P_, dated September 12, 2005
Character Reference Letter from Rev. E_ A. M_, Jr., dated August 23, 2005
Character Reference Letter from D_ E. V_, dated September 21, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890830 - 890905	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890906		Date of Discharge:  921229

Length of Service (years, months, days):

	Active:    03  03  24	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (5)		Behavior:  3.20 (5)		OTA:  3.44

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM (2), SSDR (2)

Days of Unauthorized Absence:  7

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890911:	Retention Warning: Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901217	Applicant to unauthorized absence from 0600-1200, 901217 (6 hours/surrendered).

901221:	NJP for violation of UCMJ, Article 87: Missing ship’s movement.
	Award: Restriction and extra duty for 10 days.  No indication of appeal in the record.

901226:	Retention Warning from USS TICONDEROGA (CG 47):  Advised of deficiency (Article 15 conviction for violation of Article 87, UCMJ, in that the Applicant missed the ship’s movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910219	Applicant to unauthorized absence 0645, 910219.

910220:	Applicant from unauthorized absence 0700, 910220 (1 day/surrendered)

910222:	NJP for violation of UCMJ, Article 86: Absent from unit from 0645, 910219 to 0700, 910220 (1day).
	Award: Restriction and extra duty for 25 days.  No indication of appeal in the record.

910701:	Applicant unauthorized absence 0715-0830, 910701 (1 hour, 15 minutes/surrendered).

910809:	NJP for violation of UCMJ, Article 86: Absent from unit on 0715-0830, 910701.
	Award: Reduction to E-1.  Reduction suspended for 6 months.  No indication of appeal in the record.

911211:	Retention Warning from USS TICONDEROGA (CG 47):  Advised of deficiency (The Applicant has written checks to the Navy Resale Activity without having sufficient funds to cover the purchases.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920729:	Retention Warning from USS TICONDEROGA (CG 47):  Advised of deficiency (Failed to muster on time for fire party musters and fire fighting training.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920819:	NJP for violation of UCMJ, Article 86: Absent from unit on 0730, 920810 to 0705, 920817 (6 days).
	Award: Forfeiture of ½ months pay for 2 months, restriction for 60 days, reduction to E-2.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

920825:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 920817, tested positive for cocaine.

920828:	Vacate suspended forfeiture awarded at CO’s NJP dated 910819 due to continued misconduct.

920828:	NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine on 920817, to wit: urine sample tested positive.
	Award: Forfeiture of ½ months pay for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

920828:	USS TICONDEROGA (CG 47) notified Applicant of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in the current enlistment and misconduct due to drug abuse.  The least favorable characterization of service possible is under other than honorable conditions.

920929:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

921007:	Substance Abuse/Dependency Screening: Assessment: Substance abuse.  No need for detox or Level III treatment.  Recommend admin sep.

921117:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.

921205:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in the current enlistment and misconduct due to drug abuse.

921223:	BUPERS 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 19921229 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant was awarded nonjudicial punishment (NJP) on five separate occasions for violations of UCMJ Articles 86, unauthorized absence, 87, missing movement, and 112a, wrongful drug use.  Additionally, the Applicant was administratively warned by issuance of a NAVPERS 1070/613 Counseling/Retention warning that further misconduct could result in administrative separation on three separate occasions.  Under applicable regulations, the Applicant’s misconduct did in fact constitute a pattern of misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his misconduct was the result of racism on the part of his chain of command.  The government enjoys a presumption of regularity in the conduct of its affairs.  This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  The only evidence presented to the Board to support this contention was the Applicant’s own testimony.  After careful consideration, the Board concluded that the Applicant’s testimony was insufficient to substantiate the contention that he was the victim of racism.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant contends his discharge was improper because he never received treatment for his drug dependency.  The evidence of record indicates that the Applicant was diagnosed as not dependent on drugs and therefore not eligible for treatment.  Nonetheless, the Applicant testified that at the time of his discharge he was addicted to drugs and should have received treatment.  The issue is without merit.  Even if the Applicant was improperly denied drug rehabilitation treatment, the NDRB is convinced that such an error would have been procedural in nature and not prejudicial to the Applicant’s separation from active duty or to the characterization of his service.  Therefore, if such an error occurred, it would afford the Applicant no relief.  There is little doubt to the NDRB that the discharge would have remained the same if such an error had not been made and thus relief based upon such an error is not warranted.

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 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 could 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 Board received and considered all of the Applicant’s submissions, including his character reference letters and service related documents.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The following if provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

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