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

 ex-GMSA, USN
Docket No. ND04-00530

Applicant’s Request

The application for discharge review was received on 20040212.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040921.  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:

1.  “Dear Sirs,

I am writing for the purpose of having my other than honorable” discharge reviewed.   It is my hope that with explanation, not justification, the sincerity of my case will be considered with the result of a “general” discharge being assigned to me.

I entered the Navy with the expectation of making it a career.  Having achieved the rank of Eagle Scout in the Boy Scouts, I was proud to be granted the rank of Seaman Apprentice when I enlisted.  During recruit training, I was designated Recruit Chief Petty Officer of Ship’s Staff.

The beginning of my ultimate problem began in October of 2000.  At that time I had served in the Navy for one year and was ranked GMSN.  I was in the top of my class at GM "A" School and then, in turn, earned a place in the MARK 41 VLS “C” School.  It was an honor to be assigned to the USS Cole.  I was literally walking out of my house, having been on travel leave, when my younger sister told me the Cole, “had been attacked”.  Therefore, when I reached my assignment, I was housed with the men and women who had actually experienced the bombing of their ship I Many were still receiving medical treatment for their injuries.  A female acquaintance was killed and her body parts scattered over a bulkhead.  Although not in the actual encounter.  I identified with their pain and sorrow at the loss of their shipmates, their anguish and trepidation.  I was later flown from Norfolk to Pascagoula, Mississippi to handle the removal of the tomahawk missiles from the Cole.  In the shipyard I was able to see the devastation firsthand.

After five months I was reassigned to the USS Mahan.  After I served with this crew for approximately six months, I was returning to the base from leave with my family at home in Florida.  I experienced a car wreck when my car hydroplaned with several others in what was a temporary “lake” on Interstate in Georgia.  My car was totaled and the sheriffs deputy, who was retired Navy, was surprised that I survived the impact.  He transported me to a nearby submarine base.  I later realized that the crash resulted in my going into shock and I now regret not having sought medical attention.  Having not fully recovered from the emotional shock or physical trauma and pain of this extreme experience, I arrived in Norfolk on the fateful day of September 11! Again, as every other American, I was thrown into further shock.

I was left reeling from this catastrophe, when I then had to endure the loss and grief of a close friend having been murdered.  While she was missing, a friend and I searched for her and I had the unfortunate experience of finding her body and reporting it to the police.  (Later I was flown from St. Petersburg to Norfolk to testify as a witness before the Grand Jury).  Unfortunately, and with sincere regrets and remorse, I then fell into deep despair and handled the culmination of all these profound tragedies most poorly.  Thus, I failed a random drug screening.  At the time, I didn’t feel it was to any avail, or even honorable, to explain or defend my behavior in any way, and accepted the determination of the Captain’s Mast.  The availability of drug counseling or treatment wasn’t explained offered to me and I didn’t know to ask.  My accrued leave pay was withheld and I wasn’t allotted any travel expenses.  Of course this was totally overshadowed as I left in disgrace and returned home to my family, friends, and community, dishonored and humiliated.

Since that time, I have had time to reflect, regret, mature and attempt to put my life in order.  My “other than honorable” discharge continues to haunt and disturb me.  It prevents me from pursuing a career in my second choice to the Navy, law enforcement.  I am presently working as a security officer for D.S.I. Security Services whose main office is located in Tampa, Florida. My mistake and the record of it precludes any advancement.  With a discharge upgrade, I would ultimately be able to obtain employment with the Pinellas County Sheriffs Department or the Florida Highway Patrol.

I live with the knowledge that I failed the Navy and my Country.  My family and friends are aware of my mistake and my disgrace.  However, at this time, in an effort to attain an education and establish a productive life, I would humbly request a review based on the fact that although I violated a Navy policy, it was an isolated incident for which I feel I have, and continue to pay the price.

Again, I make this plea for consideration with sincere remorse and regret.”

Sincerely,
B_ E_ J_ (Applicant)

Documentation

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

Copy of Laboratory Report of Drug Screening, dated September 29, 2003
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990730 - 991024	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991025		Date of Discharge:  011026

Length of Service (years, months, days):

	Active:    02  00  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  10			AFQT:  71

Highest Rate:  GMSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  3.00 (4)		OTA:  3.00

Military Decorations:  MARKSMAN M14 RIBBON

Unit/Campaign/Service Awards:  None

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:

010905:	NAVDRUGLAB reports Applicant’s sample positive for Cocaine.

010926:	NJP for violation of UCMJ, Article 86:  Absence Without Leave, violation of UCMJ, Article 112a: Wrongful Use of Controlled Substances.
	Award:  Forfeiture of one half month pay for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

011001:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011001:	Applicant advised of rights and elected to waive all rights.

011009:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

011015:	COMCRUDESGRU TWO 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 20011026 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).

Issue 1:  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 Applicant’s allegations, that it was an isolated incident, does not refute the presumption of regularity in this case.  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 Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 

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’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   

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