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

ex-FR, USN
Docket No. ND04-00150

Applicant’s Request

The application for discharge review was received on 20031104.  The Applicant requests the 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 20040715.  After a thorough review of the 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 character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  My overall conduct, work ethic and commitment were either good or above average leading me to receive a latter of commendation and my record of promotions showed I was a good service member.  

2.  Even after the incident occurred I still received a letter of recommendation from my LPO and still continued to provide quality work even while being punished before being separated from my duty station.

3.  There was a member of my immediate chain of command who was prejudice against any subordinate who was not in the nuclear engineering billet which is one of the main reasons I proceeded to take matters into my own hands.

4.  My ability to serve was impaired by my youth and immaturity to the point that I thought no one would help me against false charges that said person was attempting to bring against me and others.

5.  I came forward on my own seeking help, To expose my use of a controlled substance because I began realizing that what I was doing was wrong and that if I didn’t come forward and admit to using it that I would be soiling my honor and that of the Navy, which is one of the values in which the Navy had instilled in me.

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

Character Reference letter from MM1(SW) E_ V. S_, USN, dtd July 29, 2000
USS ABRAHM LINCOLN (CVN 72) Citation for Outstanding Performance from Jan 2000 to Feb 2000
Applicant’s Evaluation Report & Counseling Record (From 99OCT02 to 00JUL15)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990622 - 960629	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990630		Date of Discharge:  001212

Length of Service (years, months, days):

	Active:    01  05  13 (Doesn’t exclude lost time.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (2)	Behavior:  2.0 (2)		OTA:  2.38

Military Decorations:  None

Unit/Campaign/Service Awards:  CGUC, AFEM, SSDR

Days of Unauthorized Absence:  2

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

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

Chronological Listing of Significant Service Events:

991215:	Unauthorized absence from USS ABRAHAM LINCOLN this date.

991217:	Surrendered on board USS ABRAHAM LINCOLN (2 days).

000925:	NAVDRUGLAB, San Diego, CA:  Urine sample received on 00SEP18, 
positive for THC.

001003:	NJP for violation of UCMJ, Article 112A:  Wrongful use of a controlled substance.
Award:  Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

001025:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.

001025:	Applicant advised of 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.

001111:	Commanding Officer, USS ABRAHAM LINCOLN (CVN 72) recommended to Commander, Cruiser-Destroyer Group THREE, that Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): [FR M_ (Applicant) is incapable of adhering to the rules and regulations of the Navy and this Command.  He is simply unwilling to conduct himself in a manner conducive to good order and discipline.  I strongly recommend that FR M_ (Applicant) be separated from the naval service by reason of misconduct due to drug abuse and that his characterization of service be Other Than Honorable.]

001118:	Evaluation report and counseling comments, Section 43, comments: [Without direct supervision member routinely leaves his assigned workspace and supervisory time is diverted while searching for him. He has a poor ability to take direction when given and routinely makes disparaging comments about the naval service and his superiors to personnel living and working around him.]

001212:	DD Form 214 issued:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority MILPERSMAN 1910-146.

*Complete discharge package not available

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001212 under other than honorable conditions for misconduct due to drug abuse (A).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B), and after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issues 1-2 and 5.  When the service of a member of 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 or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two nonjudicial punishment proceedings for 2 violations of the UCMJ to include violations of Article 112a, for illegal substance use and Article 86, for unauthorized absence.  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.  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.

Issue 3.  The Applicant contends, “There was a member of my immediate command who was prejudice against any subordinate who was not in the nuclear engineering billet which is one of the main reasons I proceeded to take matters into my own hands.”  The unsubstantiated claims of the Applicant were found by the board not to mitigate the presumption of regularity in this case.  Relief denied.

Issue 4.  The Applicant contends that his ability to serve in the Navy was impaired by his "youth and immaturity."  While he may feel that his immaturity 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 on this basis is 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 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 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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