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Docket No. ND05-00533

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

 ex-AR, USN
Docket No. ND05-00533

Applicant’s Request

The application for discharge review was received on 20050203.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he 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 acknowledgement letter was returned as undeliverable.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050519.  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.” Recruiter stated upon completion of boot camp I would have been able to strike for a rate which was a lie, I was deceived.  If I had known that I would have not been able to acquire a specific rate upon entering as a E-2 I would have chosen one from the beginning, but I was informed that after boot camp this could be accomplished I went in undesignated, the end result was I lost interest due to that.”

Item 16. Remarks:

“Upon entering the US NAVY my intentions was to be the best that I could be, but upon learning that I could not strike for a rate until my four year term was up I became disturbed in my thinking and action, for I did not wanted to be some one without a cause, so this lead me to drug abuse and depression and the end result was lost of focus and my obligation and duty as a service man, today I’m still haunted by my failure.” 

Documentation

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

Certificate of Birth
Affidavit of Name Change
Character Reference Letter dated January 16, 2005
Character Reference Letter
Character Reference Letter dated January 3, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890623 - 890711	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890712		Date of Discharge:  900228

Length of Service (years, months, days):

	Active:    00  07  14
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12(GED)			AFQT:  27

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  3

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:

891117:	Applicant to UA at 0830, 891117.

891120:	Applicant from UA, surrendered at 0730 891120.

891129:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, violation of UCMJ, Article 86: (4 Specs), Unauthorized absence; Spec 1: On or about 0645, 891127 without authority absent himself from his unit, until on or about 0730, 891127; Spec 2: On or about 0645, 891124, failed to go to his appointed place of duty, to wit: Restricted muster; Spec 3: On or about 0730, 891124, failed to go to his appointed place of duty, to wit: Restricted muster; Spec 4: On or about 0645, 891128 without authority absent himself from his unit, until on or about 0800, 891128.
Award:  Restricted to NAS Oceana for 60 days, forfeiture of $349.00 pay per month for 2 months, reduction to E-1.  No indication of appeal in the record.

891221:	Applicant notified of intended recommendation for discharge and the least favorable description of service under other than honorable conditions by reason of misconduct due to drug abuse.

900111:	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.

900111:	NJP for violation of UCMJ, Article 86: (2 Specs), Unauthorized absence, Spec 1: On or about 0645, 891226, without authority, absent himself from his unit, until 1155, 891226; Spec 2: On or about 1900, 891229, without authority, absent himself from his unit, until 1400, 900102 (3days/S), violation of UCMJ, Article 92: (2 Specs) Failure to obey an order or regulation, Spec 1: Having received a lawful order from AQ3 P____, to wit: ”Report to VF-101 Framp, First LT at 0645, 900102”, an order in which it was his duty to obey, failed to obey the same by not showing up at VF-101 Framp First LT; Spec 2: Having received a lawful order from AMEC C__ U___, to wit: “Report to me at 0800, 900102, for a court escort”, an order in which it was his duty to obey, failed to obey the same by not reporting to AMEC U___.
Award:  Restriction to NAS Oceana for 60 days, forfeiture $349.00 pay per month for 2 months.  No indication of appeal in the record.

900125:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900214:	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 19900228 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 U.S. Navy were the result of improprieties by his recruiter.  According to the Applicant, his recruiter deceived him by telling him that he could strike for a rate at the completion of boot camp.  When the Applicant completed boot camp he was informed that he could not strike for a rate, which caused the Applicant to become depressed and use drugs.  There is no evidence in the record to support the Applicant’s statement.  While he may feel that his situation 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 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, 2 nonjudicial punishment proceedings for violations of Articles 86 (6 specs of UA), 92 (2 specs of failure to obey an order or regulation), and 112a (wrongful use of a controlled substance), 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.  Relief is not warranted.

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 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.  Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 5420.174D 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.