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

  ex-AA, USN
Docket No. ND05-00370

Applicant’s Request

The application for discharge review was received on 20041227.  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 discharge review was conducted in Washington, D.C. on 20050214.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The purpose of this memorandum is to request that my discharge of Other Than Honorable (OTH) be changed to Honorable.

2.  I realize that in my youth of poor judgment I was associating with the wrong crowd and therefore got into trouble for doing something wrong.  I paid the price with the loss of the military career that I desired, the punishments I served while on active duty, the loss of benefits normally associated with service and with the continued stigma of the OTH discharge which continues to haunt me today.  I was ashamed then, am ashamed now, and deeply regret my wrongdoing and all of the negativity associated with it.

3.  Following my Naval discharge I entered Drug and Alcohol Treatment in 1994, and after one relapse I finally succeeded in getting on the road to recovery.  In January 2005, I will have 9 years clean and sober.  I will list for you other accomplishments that have been attained since, but honestly this has been the biggest accomplishment of my life because without it nothing else that came after would have been possible.

4.  Since leaving active duty, I have always been a good citizen, been employed, have no bad credit, have continued to take college courses, and in May 2004 I finally completed my Bachelor’s degree in Human Services Counseling at George Mason University, graduating cum laude.  I plan on working on my Masters degree in the near future.  I am currently working as an assistant residential counselor at a residential drug and alcohol treatment center.  I know that the addiction and associated problems that I had when I was in the Navy caused my dreams to become wreckage, but I have done all that I can to develop myself and I believe in making the world a better place and helping others and that is what I currently do.

5.  However, despite all that I have been able to do so far I find now that my reaching for new goals and further development is being stopped by the OTH discharge.  I understand why that discharge was given back in 1992.  It was a part of the punishment and it made a statement by the Navy to the world as to what the Navy thought of me then.  I have paid the price for my youthful mistake over and over again due to the OTH.  I am a different person now than I was then and the discharge makes me appear now to be the person of 1992 to employers and anyone else who views these records.  The discharge says who I was then, not who I am now.  The discharge no longer accurately characterizes who I am, nor who I yet wish to be and the continued life goals that I have set for myself.  I can make even greater contributions to society, desire to do so and ask that this barricade be removed.

6.  It is with this in mind, and the documents I have enclosed that I ask for your consideration of my case and decision that my discharge be changed to Honorable.

7.  Due to the negative stigma that questions or reference to this creates I ask that I only be contacted at home (number deleted) and that my letter writers if interviewed not be told about my OTH discharge and the circumstances surrounding it.  Thank you.”

Documentation

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

Applicant’s DD Form 214 (2 copies)
Letter of recommendation from J_ S_, RN, dated July 1, 2004
Letter of recommendation from R_ J_, CSAC, dated July 5, 2004
Letter of recommendation from S_ M. O_, CAC, RAC, CAS, dated June 21, 2004
Letter of recommendation from L_ H_, Ed. D., dated June 1, 2004
Letter of recommendation from N_ J. S_, Ed. D., dated September 21, 2004
Letter of recommendation from R_ C_, dated March 21, 2004
Letter of recommendation from P_ A_, dated July 28, 1999
Letter of recommendation from P_ R. L_, dated May 28, 1998
Phi Theta Kappa acceptance letter, dated January 13, 1999
Three Dean’s List acceptance letters, dated June 16, 2003, July 18, 2003, and February 2, 2004
Cum Laude notification letter from George Mason University, dated April 8, 2004
Degree award notification letter from George Mason University, dated June 9, 2004
Drug treatment certificate of completion, dated June 3, 1994
Letter from Office of Executive Clemency, Tallahassee, FL, dated September 13, 1999
Unofficial transcript, dated June 1, 2004 (4 pp.)
Certificate of election to Alpha Chi honor society, dated February 22, 2004
Resumé (4 pp.)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900212 - 900226	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900227		Date of Discharge:  920824

Length of Service (years, months, days):

	Active:    02  05  29
	Inactive:  None

Age at Entry:  29			Years Contracted:  4

Education Level:  14			AFQT:  35

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (5)		Behavior:  3.52 (5)		OTA:  3.72

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920204:	NJP for violation of UCMJ, Article 91: Disrespectful to a superior petty officer.
	Award:  Forfeiture of $440 per month for 2 months, restriction for 60 days, reduction to E-1 (restriction for 30 days and forfeiture of one month’s pay suspended for 6 months).  Appealed 920207.  Appeal denied 920214.
920422:	Medical evaluation determined no medical evidence of drug/alcohol use and recommended no further treatment.

920427:	Report of Action Tantamount to a Civil Conviction.  Applicant was arrested on 911203 for purchase of crack cocaine, possession of crack cocaine, and resisting a law officer with violence.  Applicant requested and was accepted into Escambia County Florida Pretrial Intervention Program for first offenders in lieu of trial.  Applicant will complete the program on 930212.

920519:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, drug abuse, and due to a civil conviction as evidenced by an action tantamount to a civil conviction for the purchase of crack cocaine, possession of crack cocaine, and resisting a law officer with violence; and the additional commission of a serious offense evidenced by NJP on 920204.

920519:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920602:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920708:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a civilian conviction or action tantamount to a civil conviction, and misconduct due to drug abuse. 

920811:	BUPERS directed the Applicant's discharge 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 19920824 under other than honorable conditions for misconduct due to commission of a serious offense (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).

Issues 1-7.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) for disrespect to a superior petty officer.  In addition, the Applicant was arrested by civil authorities for purchasing and possessing illegal drugs and resisting a law officer with violence.  The Applicant’s request for and acceptance into a pretrial intervention program in lieu of a trial was an action tantamount to a civil conviction.  The Applicant’s offense for which she was awarded NJP and her civil offenses that led to her arrest are considered serious offenses under the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable or under honorable conditions (general) is inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her 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, to enhance employment opportunities, or for 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 her misconduct sufficient to warrant an upgrade to her discharge.  Relief not warranted.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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