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

  ex-IS2, USN
Docket No. ND05-00274

Applicant’s Request

The application for discharge review was received on 20041129.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050601.  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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My purpose(s) for discharge are not character for an Under Other Than Honorable Conditions Discharge.  My Discharge was based on one isolated incident in 8.5 years of Honorable service.  I only realized this after speaking with an attorney on the matter.  My current Discharge, Under Other Than Honorable Conditions was based from one Misdemeanor Criminal Conviction of Unauthorized Use of a Vehicle, and two Misdemeanor Traffic Convictions of Failure to stop at the Scene of an Accident.  All of my convictions stem from One isolated incident.  Upon review of my Military Service Record I found a Performance Evaluation that had been entered into my record after I had been seperated from Military Service, the Performance Evaluation noted that I had been seperated due to civilian convictions and drug abuse.  This Performance evaluation was totally falsified.  This Performance Evaluation was not present in my Military Service Record upon my Discarge from the Military.  I have never used drugs.  I have no Civilian, or Military Convictions for drugs.  No evidence of drug abuse has ever been presented to me.  I was told that I was being discharged due to my Civilian Convictions, and only later after I had been Discharged from Military Service, did I discover this falsified Performance Evaluation.  After I had been Discharged, I spoke with an attorney and only then was I aware that my Civilian Convictions were not Character of the Discharge received.  I gave my life to the U.S.  Navy, in it’s entirety.  I served my country Honorably.  I do not deserve a discharge that is not character of my Military Service, or based on falsified hollow allegations.”

Remarks:

“Please provide me with any evidence that is presented against me, before the Board closes this case for deliberation.  Please provide me with enough notice to be able to present to the Board any Counter-evidence that may be required for justification.  Any of the above stated contact information will be suitable notification for me.”

Documentation

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

Applicant’s DD Form 214 (2 copies)
Instructions for Completion of DD Form 293 (2 pages)
Document summary (2 pages)
Documents from Applicant’s service record (102 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950831 - 960102	COG
	Active:   USN 			960103 - 000702	HON

Period of Service Under Review:

Date of Enlistment:  000703		Date of Discharge:  040630

Length of Service (years, months, days):

	Active:    03  11  28
	Inactive:  None

Age at Entry:  24			Years Contracted:  6

Education Level:  9 (GED)		AFQT:  76

Highest Rate:  IS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.71 (7)		Behavior:  2.00 (7)		OTA:  2.65

Military Decorations:  Parachutist’s Badge

Unit/Campaign/Service Awards:  GCM (2), NDSM, SSDR, PEM

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

031008:	Division of Forensic Science, Case #03031251, suspect A_, D_ W_, Jr. (Applicant), Certificate of Analysis:  Sealed evidence bag containing Item 1: Stanozolol (Schedule III).  Item 2: Testosterone Enanthate (Schedule III).

031203:	Civil Conviction:  Chesterfield County General District Court for a misdemeanor violation of Virginia Code Section B.46.2-894, hit and run on 030916.
Sentence: Jail for 90 days, fine $250.00, cost $90.00, drivers license suspended for 90 days.  Suspended 80 days of jail time.

031210:	Civil Conviction:  Colonial Heights Combined District Court for a misdemeanor violation of Virginia Code Section B.46.2-894, refuse to stop at scene of accident on 030917.
Sentence: Jail for 12 months, fine $200.00, cost $64.00.  Suspended jail time.

031215:	Civil Conviction:  Colonial Height Combined District Court for a misdemeanor violation of Virginia Code Section 18.2-102, unauthorized use of auto on 030917.
Sentence:  Jail for 12 months, fine $300.00, cost $89.00.  Suspended 11 months of jail time.

040409:	Applicant notified of intended recommendation for discharge by reason of misconduct due to civilian conviction, misconduct due to the commission of a serious offense and misconduct due to drug abuse.  Applicant was notified that the least favorable characterization of service possible is under other than honorable conditions.

040409:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

040602:	Applicant changed his prior election of rights and waived his right to an Administrative Discharge Board.

040623:	Commander, Navy Region, Mid-Atlantic, Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

040720:	Commanding Officer notified Commander, Navy Personnel Command (PERS-4832) of Applicant’s discharge on 040630 with an under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040630 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that he served the United States well and he is entitled to an upgrade.  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 civilian convictions for misdemeanor hit and run, failure to stop at the scene of an accident and unauthorized use of an automobile.  Furthermore, the evidence of record strongly suggests that the Applicant was in possession of Stanozolol and Testosterone Enanthate, both of which are Schedule III controlled substances.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that he never used drugs, that his performance evaluation noting drug use was falsified and that no evidence of his misconduct due to drug abuse was ever presented to him.  The Board found the Applicant’s contentions to be without merit.  The record contains the Applicant’s notification of administrative board procedure indicating the Applicant was processed by reason of misconduct due to drug abuse.  The Applicant initialed indicating receipt of the notice and that his response to the notice was complete.  Furthermore, the Applicant’s notification indicated that legal counsel certified under Article 27(b) of the UCMJ advised the Applicant in regards to the reasons for processing and his legal rights.  The Applicant also refused to sign a performance and evaluation report indicating he was processed by reason of misconduct due to drug abuse.  In sum, there is more than enough evidence for the Board to presume the Applicant had sufficient notice and knowledge of the reasons for which he was processed, including by reason of misconduct due to drug abuse.  The Applicant’s assertions that he was not presented evidence of his misconduct by reason of drug abuse are simply not credible.  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.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, for wrongful appropriation of a motor vehicle, if adjudged at a Special or General Court Martial.

C.  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.

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

E.  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