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

FOR OFFICIAL USE ONLY

  ex-ETSA, USN
Docket No. ND05-00965

Applicant’s Request

The application for discharge review was received on 20050517.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached letter: 

“1.  MY DISCHARGE WAS INEQUITABLE BECAUSE IT WAS BASED ON AN 
       ISOLATED INCIDENT IN 8 YEARS OF SERVICE.
  2.  MY DISCHARGE IS IMPROPER BECAUSE IMMEDIATE ACTION WAS NOT 
       TAKEN WHEN I REPORTED MY DRUG USAGE TO MY SUPERVISOR.
  3.  MY DISCHARGE IS IMPROPER BECAUSE I WAS ADVISED BY MY 
       COUNSEL NOT TO REVEAL HELPFUL EVIDENCE.  ISSUE #2.
  4.  I NEED G. I. BILL TO ATTEND SCHOOL THE FALL OF 2005.
  5.  I NEED MEDICAL BENEFITS TO RECIEVE TREATMENT FOR DEPRESSION, 
      AS WELL AS, OTHER HEALTH PROBLEM.  IE.  HIGH BLOOD PRESSURE.
  6. NAVY ACHIEVMENT MEDAL RECIPIENT.”

“To Whom It May Concern:

This letter is to request a change of military discharge status.  When I entered the military from college, I was not fully prepared to face the challenges of transition from student to military man.  My goal was to gain experience from a branch known for its rigid course of training and discipline.  However, immaturity did not allow me to excel and progress as I should have.

After being discharged, I realized that I had to face my challenge and deal with the demons that disallowed a successful career in the military.  I returned home to Mississippi where I could have the full support of my family.  I began working on my personal and spiritual growth and used the knowledge I gained from the military to begin a productive civilian career.

My wife and I settled in Kociusko, Mississippi.  Since leaving the military I have received my certified nurse’s assistant license.  I work two jobs to support my family and attend church regularly, where I was recently ordained as a deacon.  Although my experience in the military was not as favorable as I would have liked, I have since learned from my mistakes and continue to build upon the training I received.

With the support of my family and much emotional and spiritual growth, I have matured into a man with respect for the sanctity of marriage and family.  I have the utmost respect for authority figures and the process they represent.  For these reasons I ask that you please reconsider my discharge status and allow me to continue the growth process with a military record that I, along with those most important to me, can be proud of.

Sincerely, 

[signed]  G_ M_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19891117 - 19891217		COG
	Active:    USN			19891218 – 19950511	HON

Period of Service Under Review:

Date of Enlistment:  19950512		Date of Discharge:  19980924

Length of Service (years, months, days):

	Active:    03 04 13  (Does not exclude lost time/Total Service 08 09 06)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  None

Age at Entry:  28

Years Contracted:  3 (5 month extension)

Education Level:  15				AFQT:  68

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbons (2), Southwest Asia w/(2 Bronze Stars), Armed Forces Expeditionary Medal, Navy Achievement Medal, Battle “E” Awards (2), Joint Meritorious Unit Award, Good Conduct Award (2)

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

950512:	Applicant reenlisted this date for 3 years.
	
960327:	CAAC Screening:  Admits to drinking heavily on weekends, denies drug use, one DUI 1993, completed Level II alcohol rehabilitation in March 1995, voluntarily going through Level III treatment.
	Assessment:  ETOH dependence
	Recommendation:  Agree with recommendation for Level III for ETOH.
 
970815:	Applicant to unauthorized absence at 0700 on 15 August 1997.

970816:	Applicant from unauthorized absence at 0745 on 16 August 1997 (1 day).

970924:	NJP for a violation of the UCMJ, Article 86 (unauthorized absence, 15 to 16 August 1997).
	Award:  Extra duty for 10 days, reduction to E-3 (suspended 6 months).  No indication of appeal in the record.

980223:	Applicant extended enlistment 5 months to align PRD and EAOS.

980610:	NJP for violations of the UCMJ, Article 112a (wrongful use of cocaine, wrongful use of marijuana, 2 specifications).
	Award:  Forfeiture of $500.00 pay per month for 2 months, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

980710:	Applicant to unauthorized absence at 0700 on 10 July 1998.

980710:	Applicant from unauthorized absence at 1545 on 10 July 1998.
	
980813:	NJP for violations of the UCMJ, Article 86 (unauthorized absence, 10 July 1998) and Article 112a (wrongful use of cocaine).
	Award:  Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.  

980813:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to drug abuse, and alcohol rehabilitation failure.

980813:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

980902:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, misconduct due to drug abuse, and alcohol rehabilitation failure, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

980908:	Letter of deficiencies submitted by Applicant’s counsel to Commander, Naval Base Jacksonville requested the characterization of service be general based on length of service, good work record and opinions of supervisors.   

980911:	Commanding Officer, Shore Intermediate Maintenance Activity, Mayport, recommended to Commander, Naval Base, Jacksonville, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to drug abuse, and alcohol rehabilitation failure.  Commanding Officer’s comments:  “I concur with the findings and recommendation of the Board that Seaman Apprentice M_ (Applicant) be separated from the naval service with an Other than Honorable discharge.  Seaman Apprentice M_ (Applicant) has established a pattern of misconduct, and his illegal use of drugs and alcohol rehabilitation failure have created an administrative burden on the command as well as bringing discredit upon the naval service.  His use of cocaine and marijuana indicate a total disregard for Navy policy and his conduct cannot be tolerated.  Based on his overall record of misconduct, use of illegal drugs, and alcohol rehabilitation failure, he has no potential for further useful service.  Seaman Apprentice M_ (Applicant) is currently scheduled to receive in-patient treatment at Alcohol Rehabilitation Center, Naval Hospital, Jacksonville, Florida during the period 15 September 1998 – 8 October 1998.  His end of active obligated service is 11 October 1998.  I strongly recommend that he be separated from the naval service with an Other than Honorable discharge immediately upon completion of his in-patient treatment.  His separation will enforce the Navy’s zero tolerance drug policy.”  Concerning the letter of deficiency:  “I do not concur with the comments of Counsel for the Respondent...  Seaman Apprentice M_ (Applicant) elected to have his case heard by an Administrative Board and he and his counsel presented their case before the Board.  The Administrative Board did, in fact, consider all written evidence presented by the Government and the Defense, as well as the testimony of three defenses witnesses concerning Seaman Apprentice M_ (Applicant)’s overall military record.  Seaman Apprentice M_ did not attempt to self-refer himself for drug abuse treatment and assistance as provided for in current naval regulations.  As evidenced by his own statement, he has been using crack cocaine for approximately two years and he thought that the use of drugs would solve his problems.  Consequently, he did not talk to his command about his problems.  In his statement to the Board, he admits to being unable to report to work on 10 July 1998 due to the fact that he was drinking and using drugs with his friends the night of July 9 1998.”

980919:	Commander, Naval Base, Jacksonville, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980925:	Commanding Officer, Shore Intermediate Maintenance Activity, Jacksonville forwarded the administrative separation discharge package to Bureau of Naval Personnel.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980924 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

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 outweigh the positive aspects of the member's military record.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service.  Furthermore, processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged.  Separation under these conditions generally results in an under other than honorable conditions characterization of service.  The Applicant’s service record documented three nonjudicial punishments (NJP) for violations of the UCMJ Article 112a (wrongful use of a controlled substance, 3 specifications) and Article 86 (unauthorized absence, 2 specifications).  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.  The Board could discern no inequity.  Relief denied.

The Applicant contends that he needs an upgrade to obtain medical benefits and utilize the G.I. Bill.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization based on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing employment, housing, medical or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  The Applicant’s issue is without merit.  Relief is not warranted.

The Applicant contends that his discharge was improper because he was advised by counsel not to reveal helpful information.  The Applicant bears the burden of presenting substantial and credible evidence to support this issue.  However, the Applicant provided no documentation to support his allegation.  What is more, the record does not contain evidence to support the Applicant’s issue.  Indeed, the record confirms that competent legal counsel, as defined by the UCMJ Article 27(b) represented the Applicant.  Furthermore, the record shows that this counselor called witnesses and submitted a letter of deficiencies to Commander, Naval Base, Jacksonville, following the administrative discharge board.  In the absence of documented evidence to the contrary, the Board found no impropriety in the Applicant's discharge process.  Relief denied.

The Applicant alleges that his discharge was improper because immediate action was not taken and he is a Navy Achievement Medal recipient.  The record shows the Applicant had admitted his alcohol dependence and sought help for this addiction.  However, the Applicant did not admit to illegal drug use until after he had tested positive on a urinalysis.  Furthermore, the record documents that the Applicant’s discharge was in accordance with reference (A).  The NDRB found no impropriety in the Applicant's service characterization.  Relief denied.

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 evidence of a drug free life, educational documents, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant stated in his letter that he is now a certified nurse’s assistant, works two jobs, is a deacon in his church, and supports his family; however, he provided no post service documentation for the Board’s consideration.

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 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (wrongful use of a controlled substance).

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