Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND00-00406

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

 ex-MMFA, USN
Docket No. ND00-00406

Applicant’s Request

The application for discharge review, received 000211, 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 000907.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

The NDRB did note an administrative error on the original DD Form 214.  Block 4a, Grade, Rate or Rank, should read:  "MMFR" vice "MMFA", and Block 4b, Pay Grade, should read:  "E1" vice "E2".  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was based on one isolated incident in 3 years, 2 months and 20 days of service with no other adverse action.

Documentation

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

Certificate of Completion of Alcoholism and Drug Treatment Program dtd Oct 23, 1992
Certificate of Achievement Substance Abuse 101 Course dtd Nov 27, 1995
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  860513		Date of Discharge:  890802

Length of Service (years, months, days):

	Active:    03  02  20 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  20			AFQT:  33

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.06 (3)	Behavior:  3.06 (3)		OTA:  3.13

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(3), AFEM

Days of Unauthorized Absence:  47 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

860329:	Acknowledged understanding of the Navy's Drug and Alcohol Policy.

880331:	NJP for violation of UCMJ, Article 86 (2 Specs):  unauthorized absence from unit, 0715, 17 March 1988 to 1730, 17 March 1988 and 0715 to 0930, 21 March 1988.
Award:  Restriction for 15 days.  No indication of appeal in the record.

880407:	Retention Warning:  Advised of deficiency (violation of UCMJ, Article 86 (2 Specs) of unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880625:	NJP for violation of UCMJ, Article 86 (3 Specs):  UA from unit; violation of UCMJ Article 92: disobeyed a lawful written order.
Award:  Forfeiture of $100 per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

880625:	Retention Warning:  Advised of deficiency (violation of UCMJ, Article 86 (3 specs) and Article 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880818:	On unauthorized absence from unit since 0705 hours.  Intentions unknown.

880825:	Surrendered to military authorities, USS PUGET SOUND (ad-38), Norfolk, VA, 0745 hours (6 days).  Retained onboard pending disciplinary actions.

880922:	NJP for violation of UCMJ, Article 86:  UA from unit from 18AUG88 until 25AUG88; violation of UCMJ Article 92: disobeying a lawful written regulation; violation of UCMJ Article 112A: wrongful use of a controlled substance (cocaine).
	Award:  Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

880928:	Retention Warning:  Advised of deficiency (violation of UCMJ, Article 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

881229:	On unauthorized absence from unit since 1500.  Intentions unknown.

890128:	Report of Declaration of Desertion:  Declared deserter 27Jan89 having been an unauthorized absentee since 0705, 29DEC88 from USS PUGET SOUND (ad-38).

890210:	Report of Return of Deserter:  Surrendered to military authorities at 2010, 9FEB89, having been on unauthorized absence since 0705, 29DEC88, at Shore Patrol Headquarters, Norfolk, VA.  Returned to parent command at 2038, 9FEB89 (41 days).

890407:	Summary Court-Martial
Charge I:  Violation of UCMJ, Article 86:  UA from 88DEC29 to 89FEB08
Charge II:  Violation of UCMJ, Article 87:  missed ship's movement.
Charge III:  Violation of UCMJ, Article 112A:  wrongful use of controlled substance - cocaine
Charge IV: Violation of UCMJ, Article 86 (5 Specs)
Spec 1: on or about 0600, 10 Dec 88, absent himself from place of duty, to wit:  mess decks until on or about 1000,10 Dec 88.
Spec 2: on or about 0600, 16 Dec 88, absent himself from place of duty, to wit:  mess decks until on or about 0700 16 Dec 88
Spec 3: on or about 0600, 24 Dec 88, absent himself from place of duty, to wit:  mess decks until on or about 1430, 24 Dec 88
Spec 4: on or about 0600, 27 Dec 88, absent himself from place of duty, to wit:  mess decks until on or about 1230, 27 Dec 88
Spec 5: on or about 0700, 17 Nov 88, absent himself from place of duty, to wit:  mess decks until on or about 0800, 17 Dec 88
Findings:  Charge I - Guilty
Charge II:  Not Guilty
Charge III:  Guilty
Charge IV:  Spec 1 - Not guilty, Spec 2 - Guilty, Spec 3 - Not Guilty, Spec 4 - Not Guilty, Spec 5 - Guilty
Sentence:  Hard labor without confinement for a period of 45 days and forfeiture of $250 pay per months for 1 month.
CA 890410:  Sentence approved and order executed.

890410:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to pattern of misconduct.

890415:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890415:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to pattern of misconduct and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890420:	Letter of Deficiencies submitted by Defense Counsel, LT B. C_, JAGC, USNR.

890516:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to pattern of misconduct.  Commanding officer’s comments (verbatim):  "MMFR (Applicant) blatantly violated the rules and regulations of the naval service by knowingly using cocaine on two occasions.  MMFR (Applicant)'s defense counsel states in his appeal letter that the senior member was not a line officer; that with the other ships alongside in Bahrain as well as the USS LASALLE, an 0-4 line officer could have been obtained.  I would point out that both my 0-4 line officers had been used previously in court-martials which made them ineligible to sit as senior member.  One 0-4 was the summary court-martial in the case of Respondent, the other 0-4 was working in Engineering for her EOOW qualifications.  All the ships alongside were there for just a few days and the time involved sending the proceedings through the mail would have seriously jeopardized the processing of this case.  Since an 0-4 line officer was not available and the Respondent was a minority, the 0-4 staff corps officer was a minority.  Further, the defense counsel did not object to the senior member sitting at the time of the admin board.  This is only a last minute effort to have the proceedings ruled as invalid.  
	Defense counsel objects to the summary court-martial conviction of the Respondent for the use of cocaine being considered when it was still under appeal to COMIDEASTFOR.  I would point out that it was the accused that stated while under oath in front of the Admin Board that he admitted to the use of cocaine.  I see nothing extraordinary in this case to cause me to change my view.  I concur with the findings of the Admin Board and recommend that the defense counsel appeal be denied."

890621:	CNMPC requested USS PUGET SOUND provide current dependency status of applicant.

890629:	DAPA evaluation:  Applicant drug dependent, not eligible for counseling/education/rehabilitation, recommended separate via VA hospital.

890704:	Medical Evaluation:  Found drug dependent, not eligible for counseling/education/rehabilitation, recommend separated from service via VA hospital.

890705:	USS PUGET SOUND advises CNMPC that applicant screened by medical officer and was found to be drug dependent and applicant will be separated from service via VA hospital upon NMPC approval.

890720:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 890802 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).

In response to the applicant’s issue, the Board found that the applicant’s discharge was not based solely on “one isolated incident”.  In addition to violating UCMJ Article 112a, wrongful use of a controlled substance(2 specs, cocaine), the applicant also violated UCMJ Article 86, unauthorized absence(9 specs, total 47 days); UCMJ Article 92, disobeying a lawful order(2 specs) and UCMJ Article 87, missing ships movement.
The applicant is responsible for his actions and must accept the consequences of his misdeeds.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6600/A9455/A9235/A9439