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

 ex-HA, USN
Docket No. ND04-00477

Applicant’s Request

The application for discharge review was received on 20040128.  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 discharge review before a traveling panel closest to Brooklyn, NY.  The Applicant listed Black Veterans For Social Justice, Inc. as the 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, D.C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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, 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:

“Issue 1:  The lack of assistance provided by my chain of command.

Issue 2: Deliberate wrongful advice given by my chain of command.

Issue 3: Never offered a chance to advance.

Issue 4:  Before entering the United States Navy, I attended A.P. Randolph High School in Harlem, New York.  A well rounded student I eventually went on to take the GED once entering Edison Job Corps in Edison, New Jersey.  It was here where I learned a great deal about life.  I initially enrolled in Brick Masonry, a trowel trade.  But continued to become the Vice-President of Student Government, subsequently becoming President of our Student Government.  In the course of all this I also held the position of Shop Foreman of my trade, Brick Masonry.  This is all at or around the age of 16 and 17.  I went on to complete both my trade at the highest level and also my final term in adolescent politics.  It is also at this time that I made the decision to join the United States Navy.
When I entered basic training it was not hard to adapt at all.  I quickly began to excel academically and physically despite medical set backs such as asthma, bronchitis, and tendinitis.  Throughout my time in basic training I held numerous leadership positions such as, Port Watch Section Leader, Starboard Watch Section Leader, Master at Arms, Ships Master at Arms, Ships APOC., and at long last, Ship AROC and Port Watch Section Leader for the Division.  Moving on to Hospital Corpsman “A” School, I excelled well.  It was at this point when where my life took a drastic turn.  I would then find out that I had a child on the way.
After the completion of “A” school, I was relocated to Naval Medical Center Portsmouth.  It is here I began going through personal hardships with the mother of my child, HN L_ D_ W_.  Although I did an outstanding job performing my duties as a Hospital Corpsman, after a 14 hours of work, coming home to a violent environment every night, dealing with the hardships of being a parent, and trying to help out my mother back at home with my family situation, it became overwhelming.  My personal life started to affect my performance.  I was no longer allowed my duties as Ward Senior Corpsman.  Between my own problems and the problems and training of others, I was a bit overwhelmed mentally.  I started feeling like noone cared .I’d been denied all opportunity for advancement by Commander Larson and Chief H_ every time it was time for me to take the exam.  I was being singled out by my superiors.  It felt like everything I joined the Navy for was just a gimmick.  It is at this time Chief H_ extended his help and sent me to Anger Management and Stress Management.  These courses offered by the Navy were most helpful in helping me understand how to deal with life’s many stressors.  I went on to get married to FIN M_ R_ W_.  After obtaining physical custody of my daughter B_ I_ W_, I was stationed in San Diego, California on the USS Bataan.
So to re-cap, I’m approximately 20 years of age with a pregnant wife of 6 months, a one year old daughter, and going through a custody battle on the east coast.  Between monetary issues, newly wed problems, and the adjustment of a cross country move, time were stressful.  On top of that, I was “misinformed” of my ship’s departure status.  Before agreeing to orders for my ship , I was told by my detailer that I wouldn’t be going out to sea for another year because my ship just got off of a West-Pac.  This information was incorrect.  I was informed upon check-in that my ship would be going to Hawaii for 2 weeks and then well come back in port to leave 2 months later.  My wife is about 7 months pregnant at the time and I would need to go back to the east coast for court dates pertaining to my daughter’s custody.  I then went for help once more.  While in TPU, I took the proper methods to speak with the Command Master Chief.  I explained to him in detail my situation and he basically told me that I wasn’t the only person in the Navy with hardships and to basically “suck it up”.  Once assuming duty at my actual command, the USS Bataan, I then went to my chain of command for assistance.  At the time of me checking in, my chain of command was in the process of being turned over.  Therefore, everyone with the actual power to help me was, to put in better words, too busy to assist.  This was very discouraging.  As a Hospital Corpsman, these were the same people that It was my duty and personal obligation to ensure the well-being of.  And they wouldn’t help me.  It was a bit disheartening.  Then when I finally did obtain advise, of some sort, it was said to me by the Chief Master - at - Arms that “it was impossible for me to get my orders changed so my best bet to get out of the Navy was to smoke weed” (marijuana).  My frustration with my chain, wife, children, home, sister turning to crack, I kind of gave up on it all.  I took his advise and requested a urinalysis the following morning.  I guess I felt like I had ran out of options.
Since I’ve been out of the Navy, I’ve experienced an increase of hardships.  I’ve struggled to support my family at times.  Of course my wife was a bit disappointed so we separated for about 9 months.  Through the grace of God, I’ve been able to maintain my family and keep from going under with the help of family.  I still can’t help but feel that with the proper positive advise, I would not have made the choice that was given me.  Now, come to find out, I had more options than instructed.  There was a better way.
What I ask today, being that re-in statement is told to me to be far fetched, is to at least have my discharge upgraded in order to have better job opportunity and opportunity to use my G.I. Bill that was fully paid for in order to better provide for my family in the future.  Within the past year of being out of the military, I’ve obtained security training and my Phlebotomy Certification.  I’m also in the process of obtaining my business license in order to establish my security and construction business.  A other than honorable discharge is frowned upon in any profession in the civilian world.  Having just smoked once in my life, Im looked upon as some sort of derelict with a drug problem of some sort when employers see 0TH for chemical reasons.  So if possible, please take into consideration my request.  I will agree to some type of program or drug treatment or whatever other means is available for clearing this matter from my public records.”

Applicant’s selected counsel failed to submit any additional issues.

Documentation

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

Statement of service from Department of Veterans Affairs, New York Regional Office, dated March 24, 2003
Custody order, dated October 7, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990930 - 991107	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991108			Date of Discharge:  020906

Length of Service (years, months, days):

	Active:    02  09  29
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4 (12 months extension)

Education Level:  11				AFQT:  57

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)	Behavior:  2.00 (2)		OTA:  2.67

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, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010118:	Retention Warning: Advised of deficiency (Dereliction of duty by hanging a medication and failing to infuse it.  False official statements by signing off the MAR stating that you had passed the medication.  You have been counseled four times in the last 4 months for disciplinary infractions), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020315:	Retention Warning: Advised of deficiency (Disrespect toward a superior commissioned officer on 010830), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020826:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020820, tested positive for THC.

020828:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 020820.
	Award: Forfeiture of $693 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

020829:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020829:	Applicant advised of 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.

020830:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020906:	COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020906 under other than 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).

Issues 1-4:  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.  While he may feel that his family problems and chain of command were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  Relief denied.   

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, hardship, 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.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

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