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

FOR OFFICIAL USE ONLY

  ex-FCSN, USN
Docket No. ND05-01514

Applicant’s Request

The application for discharge review was received on 20050913.  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 designated Civilian Counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060619.  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 drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter: 

“To Whom It May Concern:

Hello, my name is T_ M_(applicant).  I was born in Brooklyn, New York on October 29, 1978.  I have made my family proud a few times and disappointed one big time.  One of the first times I made my family proud was when I graduated high school in 1999.  For the last few months of my senior year, my father kept asking me, “What are you going to do when you graduate?” My father offered me a job to work with him on the Metro North Railroad.  I turned down the offer because I had decided the best thing for me would be to join the military.  I have longed to join the U.S. Navy since I was very young.  Both of my grandfathers were in the military and I respected them highly.  So in August of 1999 I went to the Naval recruiting office on 86th Street in Bay Ridge, Brooklyn.  I walked out that day with the greatest feeling after deciding I was on the right track to a great life.  Only a few months before this, I had found out that my ex-girlfriend was pregnant with my baby.  At first I was unsure of my responsibilities and what I would have to do.  After consideration the expecting baby gave me more motivation to begin my military career so that I could make a better life for my son.  My family was extremely excited about my decision.  They stood behind me 100% which was a wonderful feeling to have as a young adult.  So on September 28, 1999 I entered the U.S Naval boot camp in Great Lakes, IL.  What a great feeling it was when I marched in front of my family during Pass and Review Graduation ceremony that December.  After graduation from boot camp I began Electronic Technical Core School in Great Lakes, IL.  I passed with a B and then went on to FC “A” School, where I also made a B.  It was during “A” School that I met and married my wife, L_.  I then went on to Norfolk, VA to serve 6 months on the USS Enterprise while waiting for my next school to start.  During the time I was stationed on the USS Enterprise, the USS Cole was attacked.  This inspired me to give my all in the Navy.  So in the fall of 2000 I began Nato SeaSparrow “C” School in Dam Neck, Virginia.  It was in this 9 month course that I made a very proud A.  Also during this course my wife gave birth to our son.  Upon graduating I choose my orders for the USS Deyo, a destroyer.  I was very excited about these orders because they were the only destroyer orders available to my class at that time.  I was on the USS Deyo for 2 years.  During that time, the attack on the World Trade Center took place.  I was extremely worried because many of my family members work throughout New York City and some of them were within blocks of Ground Zero.  I was ready for my ship to pull out that very day so that we could fight back if need be.  My wife and second son were at home in Virginia waiting to hear when I would come home that day.  She was also my liaison between me and my family in New York.  The 9/l1 attack devastated me and stayed with me to this day, as it did with many other Americans.  I feel changed because of it all.  At the same time, I was very happy to be in the Navy and ready to serve and protect my family.  My father called nearly every night to give me words of encouragement to get me through those days after the attack.  My ship ended up not pulling out to sea but had to stay in the ship yards for repair.  This saddened me in ways but in other ways, was happy that I could be home for my family. In May of 2002, I pulled myself onto my bunk rack on the ship and slipped off.  I landed on my shoulder and dislocated it.  During the dislocation I also tore a ligament behind my left shoulder.  This injury was upsetting due to the fact that I was removed from my ship where I made life long friendships and built trust with my superiors. I was then sent to shore command to await surgery on my shoulder.  I was put on LIMDU for eight months which was then later extended due to rehabilitation.  To this day I still have problems with my arm especially in my hand.  There are times that my fingers curl up and twitch and I also feel numbness in my ring finger and pinky often.  In my current job as an air conditioning service technician I have to use hand tools.  It is sometimes difficult when using these hand tools due to my injury.  In the Navy after the positive urinalysis, I was made fit for full duty for release from the military when in fact I was not fully recovered.  I asked the doctors how I could be fit for full duty when I was still in physical therapy and they explained to me that it didn’t matter anymore.  But it does matter to me. Now that I have given you my naval history I would like to say that I am truly sorry for the embarrassment, disgrace, and trouble I have caused the Navy and my family.  Ever since this happened I have not been the same.  I feel less about myself and have lost most of my pride.  I have never had a problem with drugs.  This was a one time mistake.  And I feel I am still paying for it and that I will pay for it forever if I do not receive a better discharge.  I did serve a little over four years honorably until this incident took place.  I had also received my good conduct medal at my three year mark.  This is the one and only time that I ever had a mark against me through my whole military career.  My inspections always proved outstanding and my evaluations have always been above par. I was set on pursing a career as a police officer for New York City to follow in my grandfathers’ footstep after completing my six years with the Navy.  I did apply and take the NYPD test and scored a 92.  It still hurts when I receive mail from the NYPD for me to show up and take the physical and psychological tests.  If I could be given only one chance in my life for anything it would be to have at least a general discharge from the military, so that I could salvage the rest of my life and give my family a decent living.  It would be a blessing from God to have the choice to work for the state or government again.  I also would like to say that I if I did have an honorable discharge and I was called to war that I would go.  I would go to war with pride and love for the United States.  I am not asking for extra veteran benefits or for medical disability for my shoulder and hands.  But I am asking for an upgraded discharge to wipe my slate clean and start new.  I appreciate your time with reading my letter and reviewing my case.  And again I am sorry.

Sincerely,
[signed]
T_ M_(applicant)

Documentation

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

Applicant’s DD Form 215
Applicant’s DD Form 214
Petition for Correction of Military Records from McCormack & Associate Attorneys and Counsellors at Law, dtd July 20, 2005 (14 pgs)
Extracts from Service Record (35 pgs)
Extracts from Medical Record (4 pgs)
Letter from G_ M_, dtd October 29, 2003 (2 pgs)
Letter from G_ M_, dtd October 30, 2003 (2 pgs)
Letter from G_ L_, dtd October 30, 2003
Letter from T_ J_, dtd October 31, 2003
Letter from G_ M_, dtd November 5, 2003 (2 pgs)
Letter from T_ M_, dtd November 4, 2003
Memorandum for BCNR from D_ P. P_, dtd November 1, 2004
Letter to Commanding Officer from FC3 T_ C. M_, undated
Memorandum for BCNR from T. J. C_, dtd May 12, 2005 (
Letter from L_ M_ (Applicant’s Wife), dtd December 4, 2004 (2 pgs)  . 
Letter from T_ M_, dtd June 16, 2005 (2 pgs)
Letter from T_ M_, undated
Tuition Schedule for 2005-2006
Certificate of Completion for completing 28 hours of Introduction to ISN & Program Editing, from August 16 -19, 2005  

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990908 – 19990927		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990928		Date of Discharge:  20040120

Length of Service (years, months, days):

	Active:    04  03  23  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  
	Confinement:		  

Age at Entry:  20

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  71

Highest Rate:  FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (4) 		Behavior:  3.5 (4) 		OTA:  3.68 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal, National Defense Service Medal.

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: 

990908:	United State Navy Alcohol and Drug Abuse Certificate:  Applicant acknowledged Enlistment Statement of Understanding.

020522:	Applicant fell out of top rack, landed on his feet, when he reached to pull himself up, he injured left shoulder.

021002:	Abbreviated Limited Duty Medical Board Report: Applicant placed on 8 months limited duty from 021001 to 030610.  

030924:	NAVDRUGLAB, JACKSONVILLE, FL reported Applicant’s urine sample, received 030918, tested positive for cocaine.

031016:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance, in that FC3 M_, did on or about 030915 wrongfully use cocaine.
	Award:  Forfeiture of $764 pay per month for 2 months (suspend $764 pay per month for 1 month), restriction for 45 days, reduction to E-1.  No indication of appeal in the record.

031016:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug.

031016:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

031106:	Applicant found not physically qualified for separation.

031119:	Applicant found physically qualified for separation.

031202:	Commanding Officer, Shore Intermediate Maintenance Activity, Norfolk recommended to Commander, Naval Surface Force, U.S. Atlantic Fleet, VIA Commander, Regional Support Group, Norfolk that the Applicant be discharged under other than honorable conditions by reason of misconduct drug abuse.  Commanding Officer’s comments:  “Seaman M_’s failure to adapt and adhere to he guidelines set forth in the Uniform Code of Military Justice, has not only brought discredit to himself, but the command as well.  His total disregard for rules and regulations are not conducive to good order and discipline and will not be tolerated.  Enclosures (6) through (8) allege that SN M_ (Applicant) was coerced by LN1 (SIMA) into waiving his right to present his case before an Administrative board and his right to consult with an attorney.  After careful consideration of this allegation, I find that SN M_ (Applicant) was not coerced into waiving his rights to consult with counsel or to elect an administrative board.  The Legal Office explained all of the rights afforded to SN M_ (Applicant) regarding administrative separation processing, including his right to counsel and the right to elect an administrative board.  At no time did any member of the Legal Office coerce SN M_ (Applicant) to waive those rights.  Based on the foregoing information, the serious nature of the offense and after careful review of Seaman M_’s (Applicant) record, it is my belief that he has no further potential for continued Naval service.  Therefore, I recommend that he be separated with an Other Than Honorable discharge.”

031230:	GCMCA, Commander, Naval Surface Force, U.S. Atlantic Fleet directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug-abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040120 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 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 states he never had a problem with drugs and that this was a one- time mistake. The Applicant also contends that he had over four years of honorable service, received a good conduct medal, and this was the only mark against his entire military career.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  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.  
Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant does not request extra veteran benefits or medical disability for his service related shoulder and hand injury, however he states that in his current job, he still has difficulty using the tools of his trade due to this injury. For the edification of the Applicant, the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  

The Applicant contends that after the positive urinalysis, while still in physical therapy, he was made fit for full duty, and released from the military when he was not fully recovered. On 20031119, The Applicant was seen by competent medical authority at Branch medical Clinic Norfolk and found physically qualified for separation. The Applicant was fully briefed on his condition and acknowledged his status and understanding of directives by signing SF form 600 (Separation from Active duty). Relief denied.
 
The Applicant request an upgrade to general so he could salvage the rest of his life and give his family a decent living. The Applicant also states an upgrade would allow him to have the choice to work for the state or government. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The Applicant’s counsel contends that the Applicant was not fully apprised of all of his rights and that he received inappropriate advice from LN1 T_, a command legal representative, whose bias directly affected the Applicant’s decision about his future. The counsel further contends that this misrepresentation amounted to coercion. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the LN1 misled him through the separation process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The following is provided for the edification of the Applicant.  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 the service.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  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 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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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