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

 ex-AZAR, USNR
Docket No. ND05-00163

Applicant’s Request

The application for discharge review was received on 20041103.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions) and the reason for the discharge be changed to convenience of the government.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing held at the Washington Navy Yard, Washington, D.C.   Applicant advised the Board he wanted to attend a personal appearance hearing in the Washington D.C. area.
Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051019.  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 – Drug abuse (Trafficking), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by the Applicant’s American Legion representative at the time of the Applicants personal appearance hearing supersede those submitted originally on Form DD-293:

“1.  (Propriety Issue)  This former member avers that he originally enlisted for the nuclear program.  It was later discovered that he was not qualified due to color blindness and should have been discharged.

2. (Equity Issue)  This former member further opines that youth and immaturity contributed to and extenuated his misconduct of record.

3. (Equity Issue)  This former member finally requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Applicant’s DD Form 214
Applicant’s Letter, undated
Character Reference Letter from J_ M_, dated October 11, 2005
Character Reference Letter from Senior Pastor P_ M. L_, dated September 6, 2005
Character Reference Letter from C_ H_, undated
Character Reference Letter from W_ L. A_. dated October 12, 2005
Character Reference Letter from K_ C_, dated April 17, 2003
Character Reference Letter from L_ C_, undated
Character Reference Letter from COL D_ N. E_, USA, dated October 11, 2005
Character Reference Letter from B_ T_ D_, dated October 14, 2005
Character Reference Letter from B_ R_, dated October 17, 2005
Applicant’s Resume (3 pages)
U.S. Xpress Enterprises, Inc. Employee Performance Appraisal 2004 (5 pages)
Applicant’s Pay Vouchers (4 pages)
Applicant’s Credit Report (9 pages)
Applicant’s Motivational Qualities Report

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  860131		Date of Discharge:  891214

Length of Service (years, months, days):

	Active:    03  03  13
	Inactive:  00  07  02

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  67

Highest Rate:  AZAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (3)		Behavior:  2.60 (4)		OTA:  2.46

Military Decorations:  None

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 – Drug abuse (Trafficking), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

860902:	Commenced 48 months of active duty under the TAR enlistment program.

880901:	NJP for violation of UCMJ, Article 86:  UA from 0730 to 0900, 880705.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

890714:	Medical evaluation:  Applicant evaluated for possible enuresis condition.

890728:	NJP for violation of UCMJ, Article 86, violation of UCMJ, Article 92.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction to NAS NOLA and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

890729:	Retention Warning:  Advised of deficiency (You are exhibiting a lack of responsibility as evidenced by numerous incidents of tardiness, specifically you failed to go to your appointed place of duty at the prescribed time on 7 May, 11 May, 13 May, 15 June, and 20 July, 1989.  You are exhibiting a disregard for good order and discipline as evidenced by your failure to obey a general order on two occasions, and a lawful order by your superior Chief Petty Officer on another occasion.  You have been evaluated by USAF Medical Center Kessler, Department of Mental Health and diagnosed with a Personality Disorder, Not Otherwise Specified, severe, DSM III-R 301.90.  This personality disorder had been manifested by antisocial behavior, the sale and use of the drug “Ecstacy”, and tendencies toward narcissism and somatization), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891013:	NJP for violation of UCMJ, Article 80, violation of UCMJ, Article 86, violation of UCMJ, Article 92, violation of UCMJ, Article 112a.
	Award:  Forfeiture of ½ pay per month for 2 months, restricted to NAS NOLA and extra duty for 45 days, reduction in rate to the next inferior paygrade.  No indication of appeal in the record.

891013:	Applicant notified of intended recommendation for discharge by reason of pattern of misconduct as evidenced by three non-judicial punishments within the current enlistment, and by reason of misconduct due to drug abuse as evidenced by the possession of a controlled substance with intent to transfer on a Naval Air Station.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

Unknown:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

891013:	Commanding Officer recommended discharge under other than honorable conditions by reason of pattern of misconduct as evidenced by three non-judicial punishments within the current enlistment, and by reason of misconduct due to drug abuse as evidenced by the possession of a controlled substance with intent to transfer on a Naval Air Station.

891106:	Applicant seen by command DAPA, no paperwork available.  Drug screen, 0.010% ETOH, otherwise negative.

891108:	Medical evaluation for drug and alcohol dependence:  Applicant noted using “ecstasy”, MMDA and other “uppers” in recent months as well as dealing in these drugs.  He has been involved with theses drugs for many months.  Denies use or dealing in cocaine, crack, heroin or other drugs.  Applicant found psychologically dependent on illicit drugs but not physically dependent.  Illegal drugs are an important part of the Applicant’s financial and social life.  In all likelihood he will progress to physical addiction.  Applicant should be allowed the option of VA rehabilitation in the future.

891205:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (trafficking).

891208:	NJP for violation of UCMJ, Article 92, violation of UCMJ, Article 121.
	Award:  Forfeiture of $349.00 pay per month for 2 months, restricted to NAS NOLA and extra duty for 45 days.  No indication of appeal in the record.

891208:	Applicant declined drug and alcohol treatment via the Veterans Administration.

891214:	DD-214:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (trafficking).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891214 under other than honorable conditions for misconduct due to drug abuse (A).  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Issue 1.  The Applicant, through his representative, contends that his discharge was improper because he should have been discharged once he was found to be unqualified for the nuclear program due to colorblindness.  The evidence of record indicates that the Applicant’s contract was for enlistment into the TAR enlistment program including a guarantee for the “AZ” class A school and contains no guarantees or references to the Applicant being enrolled in a nuclear program.  The evidence of record is further supported by the Applicant’s testimony to the Board.  The Applicant testified that his recruiter discussed with him the possibility of entering the nuclear field but was quickly disqualified upon a MEPS examination revealing his colorblindness.  The Applicant conceded he signed no documentation guaranteeing him the nuclear program, but also testified his recruiter implied to him that despite his disqualification, he had already committed himself to the Navy.  

There is a presumption of regularity in the conduct of governmental 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 enlistment, Naval service, and subsequent administrative processing.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record to support the contention that the Applicant ever signed a contract guaranteeing him enrollment in any nuclear program.  Likewise, the Applicant has produced no evidence to support the contention that his recruiter improperly advised him he was obligated to the Naval service prior to the formal signing of an enlistment contract .  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

Issue 2.  The Applicant contends his discharge was inequitable because of his youth and immaturity at the time of service.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted most servicemembers begin their service at a relatively young age.  It must further be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Issue 3.  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 numerous character references, his outstanding employment and credit history, and his volunteer work with his local church.  In making its determination, the Board also considered the extent and seriousness of the Applicant’s misconduct while on active duty, including his three nonjudicial punishments for violations of UCMJ Articles 80, 86, 92, and 112a.  Of special consideration was the Applicant’s own admission to illegal drug trafficking for support of his own drug abuse.  After careful and deliberate 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 is 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.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

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

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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