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

     ex-SA, USN
Docket No. ND05-00465

Applicant’s Request

The application for discharge review was received on 20050126.  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 listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  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 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.  “In the year of 1997 I graduated with a GPA of above 3.0 from Hickman Mills High School in Kansas City.  I received a scholarship to go to college but I talked to a recruiter from the Navy who told me that they had bowling alleys, movie theaters, McDonalds and various types of other sources of entertainment on Navy vessels; he also told me that It was a great life change and that it would enhance my life.  I decided to go into the military in August of 1998 aboard the USS Sacramento.  When I got there all the things that the recruiter had told me was false but I still made the best of the situation I was in and I stayed.  I started out as a El but I quickly received an opportunity to move up in rank.  I started out in the deck department and then I moved to supply department where I met new people and learned new things.  I then realized that I could do this and I started setting goals for myself.  I started receiving letters of accommodations and recognition for the things that I was accomplishing in the Navy.  Around November of 2000 I was accepted to a CB “A” school because I was an excellent sailor.  Meanwhile I started working on my ESWS.

Thereafter I was accused of making fake Ids.  I became very stressed out and I missed a few days of work, I also went to a chaplain off base he then informed the chaplain on base that I was having some problems, so I returned to base to talk to the chaplain on base about the stress.  Back on the ship I felt that the MAs’ were out to get me.  The MAs’ were accusing me of making the fake Ids and I kept telling them that it wasn’t me and that I was innocent but they didn't believe me and they told me that I would lose everything that I had worked so hard for.  I knew that UA was coming up so I smoked some marijuana so that I could get out of the military.  I was court marshaled for making fake Ids.  I was found not guilty of making make Ids.  But I was given 60 days of restriction 45 days hard labor and reduction in rank for the one day UA.  This is an example of how I was being treated even after I was found not guilty of making false identification cards.  For smoking the marijuana I was sent to Captain’s Mass and plead guilty.  I was sentenced to another 45 days restriction and a reduce in rank to E 2.  Later the Captain said that the sentence was too harsh with the court marshal and he changed it to 45 days restriction and 45 days hard labor.  My failed UA led to my discharge from the Navy in May 2001.

After getting out of the Navy I turned to my pastor D_ B_ and he helped me get my life on track.  He made me realize that there its life after the Navy and it can only be what I make of it, so shortly after I got a job and starting planning my future.  That year in Nov. I met my fiancé and starting raising a family.  I have a two year old daughter named Z_, and I have one year old named A_ by my fiancé.  I became involved in the community through my church and other organizations.  I am currently going to Concorde college to become a respiratory therapist.  I have admitted my mistakes corrected them and learned from them.  I plan on furthering my career in areas to help many people and I don’t want one mistake I made as a young adult to hinder my success in life.”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

2.  “The evidence submitted attests the Applicant has become a productive member of the community therefore, we ask that you change the discharge to honorable based on post service performance and conduct.”

Documentation

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

Applicant’s DD Form 214 (2)
Job/character reference from Office Manager at Caring Hearts, Inc., undated (2)
Job/character reference from RN at Medical Lodge, undated (2)
Character reference from instructor at Concorde Career Institute, undated (2)
Letter of appreciation from Commanding Officer, USS SACRAMENTO, dated December 20, 2000 (4)
Letter of appreciation from Commanding Officer, USS SACRAMENTO, dated December 14, 1999 (4)
Letter from Commander, Navy Personnel Command, undated (2)
Evaluation Report and Counseling Record, unsigned, undated (2)
Record check from Kansas City, MO police department, dated May 17, 2004 (2)
Applicant’s service record documents (2 pages) (2)
Cover letter from Veterans of Foreign Wars, dated January 14, 2005
Letter from Veterans of Foreign Wars, dated May 16, 2005
Associate of Applied Science in Allied Health Respiratory Therapy Diploma, dated October 2004
Certificate of Certified Respiratory Therapist, dated November 9, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980721 - 980819	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980820		Date of Discharge:  010507

Length of Service (years, months, days):

	Active:    02  08  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  13			AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, SSDR, AFEM

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:

010419:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specs):
	Specifications: Unauthorized absence.
	Date of Offenses: 001102-001118.
	Finding:  guilty.
	Sentence:  Forfeiture 1/3 pay per month for 1 month, restriction for 60 days, hard labor without confinement for 45 days, reduced to E-2.  Forfeiture suspended for 6 months.
	CA action 010419:  Only so much of the sentence as provides for 10 days restriction and 45 days hard labor without confinement is changed to 10 days extra duty will be executed.  The sentencing part of forfeiture of pay and reduction in rate is disapproved.

010420:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance on 010328.
	Award:  Forfeiture of $584.55 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

010507:	DD Form 214:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority:  NAVMILPERSMAN, Article 1910-146.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010507 under other than honorable conditions for 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.  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.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use and was convicted at summary court-martial for two specifications of unauthorized absence.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

Issue 2.  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 letters of reference, educational and professional diploma and certification, and police records check.  After careful consideration, the Board concluded the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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