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Docket No. ND05-00468

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

 ex-ABFAR, USN
Docket No. ND05-00468

Applicant’s Request

The application for discharge review was received on 20050118.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Magnolia, New Jersey.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. Metropolitan area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511.  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. “While serving in the military, I underwent undo stress from being separated from my family.  While I was serving oN the ship I was advised by my parents that my grandmothers health was deteriating at a rapid pace.  While the stress continued to escalate on my self and due to my imatureness I turned to marijuana to relieve my stress.  So I got scared and went AWOLD.  I never used drugs before I entered the service and since I have been discharged I haven’t used them.  I am willing to undergo any treatment that the military recommends so I can better my discharge to a general discharge.  I relize I made a mistake and regret what I have done and would do anything to take back what I did.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020323 - 020825	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  020826		Date of Discharge:  040709

Length of Service (years, months, days):

	Active:    01  10  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rate:  ABFAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (3)		Behavior:  1.33 (3)		OTA:  2.05

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NMCOR, AFEM

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:

030716:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order (underage drinking).
Award:  Forfeiture of $670.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

030716:	Retention Warning:  Advised of deficiency (CO’s NJP held this date for: VUCMJ, Article 92-failure to obey other lawful order (underage drinking), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040112:	Punishment of reduction in rate to ABFAA suspended at CO’s NJP of 030716 vacated due to continued misconduct.

040112:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order (underage drinking).
Award:  Forfeiture of $693.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

040414:	Retention Warning:  Advised of deficiency (Identified as a ASAM Level 0.5 Alcohol Abuser), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040424:	Applicant UA from USS KITTY HAWK (CV-63) at Perth, Australia.

040426:	Applicant surrendered and returned to military jurisdiction at approximately 0618, 040426 to USS KITTY HAWK (CV-63) (2days/S).

040615:	NJP for violation of UCMJ Article 86: unauthorized absence (2 days); violation of the UCMJ Article 92: failure to obey a lawful general order (wrongfully being in a locked space on board USS KITTY HAWK, at Yokosuka, Japan with a Japanese National, of the opposite sex); violation of UCMJ, Article 112a: wrongful use of marijuana; violation of UCMJ Article 134: drunkenness.
Award:  Forfeiture of $621.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

040615:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense, and misconduct due to drug abuse.

040615:	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.

040617:	CAAC USS KITTY HAWK (CV-63) Drug and Alcohol Incident Report indicates alcohol abuse identified by military police, is amenable and eligible for treatment, found not dependent, recommended for command level rehabilitation.  Commanding Officer’s comments: Multiple alcohol related incidents, and continuing legal proceedings prevented getting member to treatment.  Admitted drug us in Perth, Australia. 

040617:	Commanding Officer, USS KITTY HAWK (CV-63) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense, misconduct due to drug abuse, and alcohol rehabilitation failure. Commanding Officer’s comments (verbatim):  As addressed in Subparagraph (d) above, ABFAR McGraugh meets the requirements for administrative processing for pattern of misconduct, commission of a serious offense, drug abuse, and alcohol rehabilitation failure.  He admitted to using illegal substances while on liberty in Perth, Australia.  Drug abuse is inconsistent with Naval standards and service member should be discharged with an other than honorable discharge with a reenlistment code of RE-4.

040622:	Commander, Carrier Group FIVE authorized 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 20040709 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:  The Applicant contends that his problems in the Navy can be attributed to the stress of being separated from his family as well as the deteriorating health of his grandmother.  While he may feel that his family situation was the underlying cause of his misconduct, the record clearly shows his willful misconduct and demonstrated he was unfit for further service.  This is reflected in the Applicant’s two retention warnings on 20030716 and 20040414, his vacated punishment on 20040112 due to continued misconduct, and his three nonjudicial punishment (NJP) proceedings on 20030716, 20040112, and 20040615 for violations for the following Articles of the UCMJ:  86 (unauthorized absence), 92 (failure to obey lawful order (three total specifications)), and 112a (drug abuse (use)).  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 is denied.

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 retention warnings and two nonjudicial punishment (NJP) proceedings for violations of Articles 86, 92 (x3), 112a, and 134 of the UCMJ.  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.

The Applicant states that, since his discharge, he has not abused illegal drugs.  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 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 any 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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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.