Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-00418

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

ex-BUCR, USN
Docket No. ND04-00418

Applicant’s Request

The application for discharge review was received on 20040115.  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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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/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.  “I feel that the command that I was with was too harsh, and if the procedures would have been explained to me I would have received an honorable discharge.  I also feel that the 2 years that I did serve with the navy was served honorably.”

Documentation

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

Statement from Applicant, undated
Applicant’ s DD Form 214 (Member 1 and 4)
Letter from Applicant, undated
Character reference, dated February 2, 2004
Job/character reference, dated February 10, 2004
Letter from Applicant, undated
Eight pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990812 - 000612	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000613		Date of Discharge:  020307

Length of Service (years, months, days):

	Active:    01  08  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  BUCA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, SSDR

Days of Unauthorized Absence:  None

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:

010405:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order.
	Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction in rank.  Reduction suspended for 6 month.  No indication of appeal in the record.  [Extracted from NAVPERS 1626/7, dated 020225.]

010405:	Retention Warning:  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 020301.]

010522:	Applicant to Alcohol Treatment Facility, psychological screening report: Diagnostic impression: Axis I: Alcohol dependence with physiological dependence, R/O Major Depressive disorder vs bereavement, R/O Adjustment disorder.  Axis II: Diagnosis (Borderline personality features).

010605:	Applicant to Alcohol Treatment Facility, Rota, Spain.

010706:	Applicant discharge from treatment.  Final Diagnosis: Axis I: Alcohol dependence, with physiological dependence.  Axis II: Diagnosis deferred (Borderline personality features)

020222:	Applicant refused Drug and Alcohol treatment at a military treatment facility prior to discharge.

020301:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 020110, to wit: cocaine.
	Award: Forfeiture of $550 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

020301:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020301:	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 and to submit a statement.

020301:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020305:	Commander, Naval Air Warfare Center Weapons Division 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 20020307 under other than honorable conditions for misconduct due to drug abuse (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).

Issue 1.  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 Applicant asserts, “if the procedures would have been explained to me I would have received an honorable discharge.”  The Applicant waived her right to request an Administrative Board.  Neither the submissions of the Applicant nor the evidence of record demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for his actions.  Relief denied.

The Applicant contends that she served the United States honorably.  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 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 two violations of Articles 92 and 112a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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.  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 33, effective 16 Jul 2001 until 21 Aug 2002, 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

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.