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Docket No. ND05-00140

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

 ex-TMSR, USN
Docket No. ND05-00140

Applicant’s Request

The application for discharge review was received on 20041020.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter the applicant was informed that she was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  The Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20050329.  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 - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident with no other adverse action.  I was young and never away from home.  I gave into peer pressure to try “coke”.  I never did it again.  I don’t smoke, drink, or use any drugs.  I know now that peer pressure can ruin your life. I have lived with the humiliation for years.  I want to set a good example for my daughter.  I really am a good citizen I have had same job for 12 years.  I go to church, I wear my seatbelt, and I pay my taxes.  The only trouble I have ever been in is because I made the wrong decision that I thought would keep my so-called “Friends”.  I can’t even remember their names.  That was the worst mistake I ever made, I pray everyday that I could take that moment back.  I was so proud to wear the Navy uniform.”

Documentation

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

Applicant’s DD Form 214
Police Certificate, dated 19 Nov 2004
Letter Confirming Employment, undated
Character Reference Letter from M_ P. S_, dated 30 Aug 2004
Character Reference Letter from Ofc. G_ S_, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880602 - 880626	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880627		Date of Discharge:  900917

Length of Service (years, months, days):

	Active:    02  02  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12 ½			AFQT:  58

Highest Rate:  TMSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.10 (2)		Behavior:  2.46 (3)		OTA:  2.70

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, LoC

Days of Unauthorized Absence:  33

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:

890620:	Applicant to unauthorized absence 1230, 890620.

890720:	Applicant declared a deserter.

890723:	Applicant from unauthorized absence 2044, 890723 (33 days/surrendered).

890727:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 890620 to 890723.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $466.00, restriction for 60 days, reduced to E-1.
	CA action 890803: Sentence approved and ordered executed.

890908:	Retention Warning:  Advised of deficiency (Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900823:	Retention Warning:  Advised of deficiency (Dereliction in performance of duties and damaged military property.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900831:	NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine.
	Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

900904:	Medical evaluation for drug abuse: Applicant denied any drug use, unable to find any evidence of dependency.  No treatment necessary.  

900904:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by Applicant’s one summary courts-martial and one nonjudicial punishment during the current enlistment.  Applicant notified that if separation is approved, the least favorable characterization of service is under other than honorable conditions.  

900904:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), 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 the separation.

900905:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a commission of a serious offense.

900911:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900917 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:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  Additionally, she was convicted at summary court-martial for a violation of UCMJ Article 86, unauthorized absence for a period of 33 days.  The Applicant implies that her discharge was inequitable because it was based on one isolated incident.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  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’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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service.  As such, relief is denied.

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 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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including her police records check, employment verification and character reference letters.  Unfortunately, as of this time, the Applicant’s post-service conduct has been insufficient to mitigate her misconduct while in the Naval service.  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 other evidence related to her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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.