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

FOR OFFICIAL USE ONLY

ex-DCFN, USNR(TAR)
Docket No. ND06-01011

Applicant’s Request

The application for discharge review was received on 20060725.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20070517.  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 by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Alcohol problem

Equity – Quality of service

Equity – Post service

Documentation

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

Applicant’s DD Form 214 (Service 2)
Letter certifying Applicant is registered to obtain certification as an AOD counselor with 	the California Association for Alcohol/Drug Educators, dated May 23, 2005
Character/Job Reference letter from B_ C_, Executive Director, Varp, Inc., dated June 	19, 2006
Character/Job Reference letter from L_ K_, Assistant Director, Varp, Inc., dated June 19, 	2006
Character/Job Reference letter from E_ A_, Program Coordinator S.G., MRR, Varp, 	Inc., June 15, 2006
Character/Job Reference letter from J_ A_, Program Coordinator, MRR, Varp, Inc, dated 	June 22, 2006
Character Reference letter from M. T_, Professor of Physical Education and Recreation, 	Palo Verde Community College, dated June 18, 2006
Character Reference letter from, D_ B_, MD, Palo Verde Hospital, dated June 13, 2006
Character Reference letter from S_ M. M_, dated June 13, 2006
Character Reference letter from J_ C. W_, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19911022		Date of Discharge:  19950616

Length of Service (years, months, days):

	Active:    03  06  05  (Does not exclude lost time.)
	Inactive:  00  01  20

Time Lost During This Period (days):

	Unauthorized absence:  5 days
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  79

Highest Rate:  DC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (3)			Behavior:  3.7 (3)		OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Naval Reserve Sea Service Ribbon; National Defense Service Medal; National Defense Service Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

911211:	Commenced active duty.

911213:	Retention Warning: “You (Applicant) are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement.  9006 Ran stop sign unpaid, 9008 Failure to appear, Indio, CA $103.00 unpaid fine.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.”

911213:	Applicant briefed on Navy's policy of drug and alcohol abuse.

930617:	NJP for violation of UCMJ, Article 92:  Failure to obey lawful order by wrongfully smoking in Auxiliary Machine Room Two. 
	Award:  Forfeiture of $475.00 per month for 1 month, restriction for 60 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

931117:	Counseling:  Advised of deficiency (substandard work habits on 941113 and 941114.), notified of corrective actions and assistance available.

931123:	Counseling:  Advised of deficiency (leaving home without sufficient time for incidents such as auto breakdown to report in time for muster, 931122 absent from 0655-1300 (called in prior to 0600), notified of corrective actions and assistance available.

940110:	Counseling:  Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.

940228:	Applicant base driving privileges are suspended due to multiple parking violations/FIA.

940509:	Applicant on unauthorized absence 1030-1300.

940520:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Restriction and extra duty for 15 days.  No indication of appeal in the record.

940520:	Retention Warning:  Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 86: Unauthorized absence.  Awarded:  Restriction and extra duty for 15 days.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940609:	Retention Warning:  Advised of deficiency (Conduct due to the 940520 mast for UCMJ Article 86: Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  [Extracted from Commanding Officer’s letter dated 950417.]

950124:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950118, tested positive for amphetamine/methamphetamine.

950203:	NAVDRUGLAB, San Diego, CA, reconfirmed Applicant’s urine sample tested positive for amphetamine/methamphetamine.

950209:	Applicant to unauthorized absence at 0715.

950211:	Applicant from unauthorized absence at 0115 (1 day/surrendered).

950212:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
Violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Restriction and extra duty for 30 days, reduction to E-4.  No indication of appeal in the record.

950216:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950213, tested positive for amphetamine/methamphetamine.

950216:	Retention Warning:  Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 112a: Wrongfully use of controlled substance and Article 86: Unauthorized absence.  Awarded:  Restriction and extra duty for 30 days and reduction in rate to E-4.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950302:	Drug and Alcohol Abuse Report: Amphetamine abuse, less than monthly, ashore off duty.  Random urinalysis on 950212.  Physician found Applicant not dependent and recommended separation, separate from service not via VA Hospital.  Commanding Officer recommended separation.  Comments:  Member has no potential for further service due to drug abuse.  Medical Officer screening results non dependent no treatment required.  Command currently separating member from USN for drug abuse.

950302:	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 drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

950306:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

950406:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct, that such misconduct warranted separation, and recommended discharge under conditions other than honorable.

950416:	Applicant apprehended by Riverside County Sheriff’s Department, Riverside, CA.

950417:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

950418:	Applicant to unauthorized absence at 0715.

950423:	Applicant from unauthorized absence at 0500 (4 days/surrendered).

950428:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

950605:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950616 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

Equity – Alcohol problem: The Applicant requests that his discharge be upgraded to general (under honorable conditions) and that the Board take into consideration that he was suffering from alcoholism/addiction.

While he may feel that his abuse of alcohol 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.

Equity – Quality of service:  The Applicant contends that he is very patriotic and proud of the good things he did while he was in the Navy.

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 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 4 retention warnings and 4 nonjudicial punishment proceedings for violations of Articles 86, 92 and 112a of the UCMJ.  Violations of UCMJ Articles 92 and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court-martial.  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.

Equity – Post service:  The Applicant states that he does not use drugs and works to help veterans overcome their alcohol/addictions.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided 5 documents that corroborate his employment since 2002, and 4 letters of character reference, as documentation of his post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of documentation of community service, evidence of a drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.

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 additional evidence related to this 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, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 92 (Failure to obey an order, regulation) and 112a (wrongful use, possession, etc., of controlled substances).

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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