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

 
 ex-SA, USN
Docket No. ND05-00224

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to New Orleans, LA.  The Applicant did not list any 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 National Capital Region.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application, the Applicant 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 available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was considered 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.  “When I was younger, I was very naive.  I now understand the consequences of my actions back then.  I would appreciate the possibility of a second chance by having my discharge upgraded to honorable.  I feel that since my discharge, the resulting benefits from employment to enormous other aspects of life have been limited.  When I finally do get married and have children in the future, I do not want my children suffering because I wanted a moment of gratification.  I really did not think of my future at that time.  Due to the limited capabilities for enhancing my personal life style, I can see where my future looks dim because of this type discharge.  I have contacted several community leaders for their endorsement proving my changed life style.  I want to remain positive and hope that you can find it within the law to grant my request for upgrade as requested to give me my one and possibly only second chance at a prosperous life.  I would appreciate serious consideration in this matter.”

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.

The Boards attention is invited to Blocks 24 and 28 of DD Form 214.  In the absence of a favorable decision, per BUPERSINST 1900.8, Block 24 should read Under Other Than Honorable Conditions and Block 28 should read Misconduct.

Review of the available records reflect that this former member served without incident until he was awarded NJP on 000323 for VUCMJ, Article 134;  had a civil arrest on 010413 for drug possession and was awarded NJP on 010525 for VUCMJ, Articles 107, 112a.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he has suffered the stigma of his UOTHC discharge long enough and would like a second chance at life.  He has submitted 3 pages of additional documentation attesting to his good post service character 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:

Letter from Chief of Police, Morse Police Department, undated
Letter from Mayor, Village of Morse, dated September 1, 2004
Letter from Pastor, Immaculate Conception Church, dated September 7, 2004
Statement in support of claim from Applicant, dated December 10, 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980926 - 990811	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990812		Date of Discharge:  010720

Length of Service (years, months, days):

	Active:    01  11  09
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)	Behavior:  1.00 (2)		OTA:  2.25

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

Chronological Listing of Significant Service Events:

000323:	NJP for violation of UCMJ, Article 134: Underage drinking on 2320, 990315.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days.  Restriction and extra duty for 5 days suspended for 6 months as of 000417.  No indication of appeal in the record.

000404:	Retention Warning: Advised of deficiency (Misconduct as evidenced by your violation of the Uniform Code of Military Justice, Article 134: wrongfully consumed alcoholic beverages while under the age of 21 in violation of Washington State Law, which conduct was of a nature to bring discredit upon the Armed Forces on 000315), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010413:	Civil Arrest:  Applicant arrested by ODD Bremerton Police Department for wrongful possession of marijuana along with six other C. V. sailors.  Court date unknown.  [Extracted from Commanding Officer’s letter dated 010618.]

xxxxxx:	NAVDRUGLAB, reported Applicant’s urine sample, received 010426, tested positive for THC. [Date unreadable.]

010515:	NAVDRUGLAB, reported Applicant’s urine sample, received 010509, tested positive for MDA.

010525:	NJP for violation of UCMJ, Article 107: Making a false official statement on 010510 violation of UCMJ, Article 112a: Wrongful use of marijuana on 010413.
	Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

010525:	Applicant notified of administrative separation processing by reason of misconduct due to a pattern of misconduct as evidenced by nonjudicial punishment imposed on 000323 and 010525 during his current enlistment, misconduct due to commission of a serious offense as evidenced by nonjudicial punishment imposed on 010525 for violation of the UCMJ, Article 107 and misconduct due to drug abuse as evidenced by nonjudicial punishment imposed on 010525 for violation of the UCMJ, Article 112a.  The least favorable characterization of service possible is under other than honorable conditions.  [Extracted from Commanding Officer’s letter dated 010618.]

010525:	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.

010526:	Applicant declined medical officer evaluation.

010618:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

010712:	COMCARGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010720 under other than honorable conditions by reason of misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issue 1.  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’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 107, 112a and 134 of the UCMJ in addition to a civil arrest. Violations of Article 107 are considered serious offenses.  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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 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 contends that his problems in the Navy can be attributed to being naïve.  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Additionally, The Veterans Administration determines eligibility for post-service benefits not the Naval 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.  

Issue 2.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

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.  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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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