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

 ex-HTFN, USN
Docket No. ND00-00986

Applicant’s Request

The application for discharge review, received 000802, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested 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 010215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  
I was born in Elizabeth NJ of Hispanic background. Graduated from Elizabeth High School in 1990.  During my high school years I served in JROTC.  I did very well.  Since, my father was in the military, I adapted very well to military life and always wanted to join the military.  I wanted to become someone important, do well in life and travel places, so I joined the NAVY.  Through basic training I did well and graduated with honors.  From basic training I was sent to the Persian Gulf.  I really enjoyed being in the Navy.  I became a veteran early of age and strived to become qualified in all I could in my rate as an HT attached to repair division.  I was qualified in everything to my rate and more and always did what was assigned and expected of me.  My first 4 years in my performance of duty I was a 3.8 and 4.0 all the way.  I got along with everyone including my military superiors in those 4 years in.  I was assigned lst to an Air Craft Carrier USS Midway CV-41, in which I detached with good standings from their, I was on the decom team and was re-assigned to my second command USS 116 Gator Frator in which also I was on the decom team I also departed with good standings.  I then was assigned to my 3rd and final command USS DD 986.  I got my lst good conduct medal my lst 4 years became 3rd class petty officer, then I came to the end of my obligated enlisted service and was given an Honorable Discharge during the time of my enlistment I married my wife was pregnant with our lst child I asked if I could extend 4 months but was denied extension.  The career counselor told me I had to re-enlist in order for the Navy to pay for our babies hospital bills and that the military would not pay if I got out.  This were my problems started I asked to speak to someone who would advise me about my options and really was left no choice and was not taken into consideration at all I went through my chain of command and asked to speak to a counselor due to my marriage was going bad, my wife did not want me to re-enlist I had applied for a position with the US Border Patrol at the time because I wanted to continue to serve the government through that agency.  Everything started going down hill due to that no one helping me seek help for my situations, I was forced into re-enlisting with my babies bills and my wife on the other side I was frustrated had a lot on my mind outside pressure was also pushing me down I started drinking more and was influenced into taking some drugs due to I was always tired barely slept and I honestly did not know what else to do, I knew that it was not the right steps to take, but then I finally started to get attention after I re-enlisted a few months later, I was told I could have extended 1 month or two, and that the career counselor on board just wanted to meet his quota.  I felt betrayed everyone I was told to talk to made me feel like I was just no one at all during this time I was alone I never did any drugs before my lst 4 years were clean no trouble and great, I was a good sailor, I was given a urine test and pop positive on it, I was taken to CO'S Mast and served 45-45 days and more all through this and no one even asked how I was or if they could help in any way.  I was taken to see the legal counselor but only to sign papers I did not know I could have my lst 4 years waived and my GI Bill, I signed the papers but was under a lot of stress at the time confused more to say.  I during this time I kept getting the run around and never saw a counselor to help me with my problems I had asked for I admit I was wrong in doing what I did theirs no doubts but I was lied to several times never considered I spoke but no one listened to me I ran chits but they never got passed the division officer.  So I was discharged from the service in March 31,95 only serving 7 months of my second enlistment in which I felt I was mistreated and lied to.  I never attended any rehab because I only did it twice and I honestly was not doing drugs I did it to get attention I did not know if I would have spoken to someone first I would have had a different discharge if I would have spoken to the same counselor about my problems everything could have been different.  I feel if I had got the proper advise and help I asked for in which my command did not provide I would have made my second enlistment through.  I was never informed about what a bad effects a other than honorable discharge could have on me with society, and so many problems out in the civilian world and especially never told it would not be hard to change my discharge later, better yet I did not know I could change it at all.  I went to an V A office to request information on other matters and was told all this.  During all this time I went through my situation I was separated from my wife and family and dealt with this all alone and this is my reason for believing I got a wrongful discharge I could have talked to the dapa officer I did not know he existed on board, believe me I asked for help, but I got the runaround sit and wait and we will take care of it they said and I ended paying a big price the effects of the type of discharge have been really bad I get turned away from good jobs I tried getting into law enforcement and get turned away until I get my record fixed they say come back.  I have passed many government jobs examines like sheriff's, border patrol, post office correctional officer, and have been turned down every time I have gotten back with my family and I have 4 children to support I can not succeed in life with out a good record discharge from the military, I've always tried harder to do was best in life I only pray to do what’s right in life, since then I have not been able to land a good job.  As God being my savior I only pray you decide to give me a clean start I would love to continue on serving my country in another form of government job or agency, law enforcement if possible.  I would like to gain my lst 4 years and my GI Bill for school to further my education and have my benefits returned back to me and if I ever leave this world leave my family something to fall back on.  Sincerely, (Applicant)

Documentation

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

USN Honorable Certificate dtd 3 July 1994
Good Conduct Award Certificate dtd 4 July 1994
High School Diploma Certificate dtd June 1990
Letter of Employment Contractors, dtd Aug 18, 1995
Letter of Employment, Good Nite Inn, dtd July 19, 1999
Copy of DD Form 214 (Copy 1 and 4)
Applicant's Resumé

PART II - SUMMARY OF SERVICE

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

	Active:   USN			900705 - 940703	HON
	Inactive: USNR (DEP)	891020 - 900704	COG

Period of Service Under Review:

Date of Enlistment:  940704		Date of Discharge:  950331

Length of Service (years, months, days):

	Active:    00  08  28  (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (2)	Behavior:  3.4 (2)		OTA:  3.57

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWASM, SSDR(3), GCM(1), NUC

Days of Unauthorized Absence:  29 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

940704:	Reenlisted for 4 years USS HARRY W HILL (DD 986) at sea.

950122:	Unauthorized absence from the USS HARRY W HIILL.

950123:	Missed Ship's movement.

950203:	NJP for violation of UCMJ, Article 86:  absence from unit; violation of UCMJ Article 87: missing movement; violation of UCMJ Article 112a: wrongful use of a controlled substance.
Award:  Forfeiture of $498 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

950223:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all incidents in your current enlistment.

950223:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to separation.

950224:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments:  "HTFN (Applicant) tested positive in a voluntary urinalysis screening.  His actions show a flagrant disregard for the Navy's zero tolerance drug policy.  SNM has no further potential for naval service and should be discharged under other than honorable conditions."

950320:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Advised command that due to violation of UCMJ, Article 87, applicant should have also been processed for misconduct due to commission of a serious offense.

950321:	Medical Eval:  Pt popped positive on UA for methamphetamine.  Reports that this was only 2nd usage of drug.  Not dependent.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950331 under other than honorable conditions for misconduct due to drug abuse (use) (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).

The applicant’s letter is listed as his issue.  The NDRB found the applicant’s issue described some of the circumstances surrounding his discharge along with matters of extenuation and mitigation for the Board’s consideration.  After careful review of the record the Board discerned no impropriety or inequity in the discharge.  The applicant was afforded all his rights by regulation, and nothing in the record suggests that the applicant was incapable of making a decision.  Relief is not warranted.

The applicant requested his desire to obtain VA services as well as the GI Bill.  The NDRB makes no determination regarding the applicant’s eligibility for VA benefits.  The applicant is directed to contact the VA for information regarding VA benefits.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, an error or injustice 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, may be considered by the NDRB.  While the applicant provided the Board with employment references, he failed to provide substantial and compelling evidence that he has made significant progress to become an outstanding member of the community.  The Board found no sobriety evidence, such as drug test results, participation in rehabilitation programs, or volunteer service and educational pursuits to warrant an upgrade.  Relief is not warranted. 

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023