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

  
ex-BTFN, USN
Docket No. ND04-00841

Applicant’s Request

The application for discharge review was received on 20040427.  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 discharge review before a traveling panel.  The Applicant listed private representation 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.  Subsequent to the application the Applicant converted to a documentary record review and obtained representation by the American Legion.   

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050323.  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:

1. “Respectfully, request a General upgrade, I was in the Navy in the late nineties and I got married to young & my wife had a serious “cocaine” problem.  I tried to help her “treatment” through the Navy but nothing worked for her. I didn’t at the time realize the seriousness of cocaine at that time.  For as “Addiction” so I love the woman very much.  So one day I tried “Coke” with her just to try to pacify her & that it was only in her head.  But to no avail she wouldn’t kick.  I presumed life back on my ship.  She called & said that I was the one on cocaine & my command U.A. me & I tested positive.  I lost everything do to her & my lack of knowledge.  My Navy career went down the tubes & it has haunted me every since them.  I loved the Navy & still do.  I would just let to see if I can get my discharge upgraded.  At least I would feel that my country respected my time serving.  Thank you very much”

Additional issues submitted by Applicant’s representative (AMERICAN LEGION):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, 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 issue and following statement in supplement to this Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory 3.32 performance and 3.16 conduct markings and earned the SSDR and USCGOSR.  He was awarded NJP on 871106 for VUCMJ, Article 117; NJP on 890510 for VUCMJ, Article 92 and NJP on 890811 for VUCMJ, Article 86.  He tested positive for cocaine on 891019.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his wife had a serious drug problem and over time influenced him to use the drug on one occasion and then she reported it to his command.  He has submitted 5 pages of additional documentation attesting to his good post-service character and drug free life style for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Character reference letter from Bishop J.C. G_, Sr. Pastor 
Character reference letter from J_ A. E_, DVA
Character reference letter from J_ W_
Character reference letter from J_ W_
Character reference letter from T_ M_
VA Form 21-22

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860226 - 860318	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  860319		Date of Discharge:  891128

Length of Service (years, months, days):

	Active:    03  08  05  (Does not include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  30

Highest Rate:  BT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.32 (5)		Behavior:  3.16 (5)		OTA:  3.32

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, USCGSOSR

Days of Unauthorized Absence:  5

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:

871106:	Retention Warning from [USS LUCE (DDG-38)]:  Advised of deficiency (Provoking words), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

871106:	NJP for violation of UCMJ, Article 117: Provoking words.
	Award: Restriction for 3 days.  No indication of appeal in the record.

890130:	UA from USS LUCE (DDG-38) located at Naval Station, Mayport, FL.

890204:	Surrendered onboard USS LUCE (DDG-38) located at Naval Station, Mayport, FL (5 days).
 
890428:	NJP for violation of UCMJ, Article 92: Failure to obey order, in that SNM did having knowledge of order fail to obey by having a weapon in his possession.
Award:  Restriction for 12 days, extra duty for 7 days.  No indication of appeal in the record.

890501:	Retention Warning from [USS LUCE (DDG-38)]:  Advised of deficiency (Failure to obey order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890811:	Retention Warning from [USS LUCE (DDG-38)]:  Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890811:	NJP for violation of UCMJ, Article 86: UA in that SNM did absent himself for a period of 1 hour and 30 minutes.
	Award: Restriction for 2 days.  No indication of appeal in the record.

891019:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 891013, tested positive for [cocaine].

891023:	Medical Officer’s evaluation found no evidence of drug or alcohol dependence. 

891024:	[USS LUCE (DDG-38)] notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of drug abuse/wrongful use and a pattern of misconduct as evidenced by three Commanding Officer’s Non-Judicial Punishments in this enlistment.

891024:	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 and the right to submit statements on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.

891026:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct.

891115:	CNMPC 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 19891128 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).

Issue 1.  The Applicant received nonjudicial punishment on three occasions for use of provoking words, failure to obey orders and unauthorized absence.  There is also credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  While he may feel that his relationship with his wife was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  Additionally, 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.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief not warranted.

The following if provided for the edification of the Applicant.   The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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