Author: CAP
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Docket No. ND05-00717

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

FOR OFFICAL USE ONLY

 ex-ITSR, USN
Docket No. ND05-00717

Applicant’s Request

The application for discharge review was received on 20050321.  The Applicant requests the characterization of service received at the time of discharge 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 20050727.  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:

“Dear Sir or Madam:

My name is N_ W L_ (Applicant).  I am 23 years old.  I will be starting school at Western Nevada Community College, in June.  Because my drug use was detected by civilians I am also on probation.  I am supervised by M_ R_ here in NV.  I received 5 years probation and have served a year of it so far.  In this year I have had no problems, arrests, or dirty drug tests.  I have been clean and sober for over a year now.  I go to AA meetings once a week and see a counselor for my stress and other issues once a month.  I am employed full time.  Before the incident that cost me my career, I hadn’t had a drug or alcohol problem.

I did three consecutive years with nothing bad on my record, I am making great strides in fixing my life, and I don’t wish to be haunted by this one terrible mistake for the rest of it.

I was IT3 when I was caught, I am going back to school for my Microsoft Certifications and eventually a Computer Science degree, I am great with computers and want to get my life back together.  If I could, I would ask that I be given another chance to make my military career what is was supposed to be.  I loved it and I was good at it.  I am asking for my discharge to be changed to Honorable.  I have a very long life ahead of me, and this is something that will follow me forever.

I would like to finish this by saying I am very ashamed of myself and would do anything to make it right.  Drugs are not the answer no matter what the problem is.  I know that now.  I deeply regret whatever lapse in thinking allowed me to think drugs could help me.

If you would like any of the above verified please feel free to contact me, I can give my probation officer, counselor, and anyone else you would like to speak with, permission to speak to you about my case.  Thank you for your time and your consideration.

Sincerely,
[signed]
N_ W L_ (Applicant)
(address and telephone numbers deleted)”

Documentation

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

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010323 - 010429	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010430		Date of Discharge:  040603

Length of Service (years, months, days):

	Active:    02 11 21	(excludes lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  59

Highest Rate:  IT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)		Behavior:  2.00 (3)		OTA:  2.94

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal

Days of Unauthorized Absence:  45

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:

021104:	Retention Warning:  Advised of deficiency; Failure to meet physical readiness test standards.  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031201:	Retention Warning:  Advised of deficiency:  Failure to meet Body Composition Assessment (BCA) standards.  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040208:	Applicant apprehended by Chula Vista Police Department for DUI (drug/alcohol), possession of a controlled substance, possession of a controlled substance with intent to sale, transporting a controlled substance, and for being under the influence of a controlled substance.

040209:	Applicant to unauthorized absence at 0730.

040322:	Civil Conviction:  Superior Court of California, county of San Diego for violation of felony charge of possession of a controlled substance and misdemeanor charge of DUI alcohol/drugs.
Sentence:  Fine $1700.00, probation for 5 years, driver’s license suspension for 180 days, and commitment to sheriff for 365 days.

040324:	Applicant from unauthorized absence at 0750 (44 days/surrendered).

040329:	NJP for violation of UCMJ, Article 86 (Absent without leave)
Specification: IT3 N_ W_ L_ (Applicant), USN, on active duty, did at or about 0730, 9 February 2004, without authority, absent herself from her organization, and did remain so absent until 0730, 24 March 2004.
	Award:  Forfeiture of $50 per month for 1 month, reduction to E-3.  No indication of appeal in the record.

040329:	Assault on Seaman B_M_.

040409:	NJP for violation of UCMJ, Article 128 (Assault)
Specification: ITSN N_ W_ L_ (Applicant), USN, assault, Seaman B_ M_ by pushing and kicking at him, and putting him in a chokehold.
	Award: Forfeiture of $100 per month for 2 months, reduction to E-2.  No indication of appeal in the record.

040415:	Medical evaluation alcohol/drug abuse found the Applicant to be alcohol and amphetamine dependent.  Intensive outpatient treatment recommended.  

040430:	Applicant unauthorized absence.

040430:	Applicant failed to participate in Physical Readiness Test (PRT).

040506:	Applicant to unauthorized absence 0730-0830.

040518:	Applicant to unauthorized absence 0730-0755.

040519:	Applicant to unauthorized absence at 0730-1045.

040520:	Applicant from unauthorized absence at 0730-0845.

040520:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense, civilian conviction, and drug abuse.  Least favorable characterization of service possible is Under Other Than Honorable.

040520:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.

040524:	Applicant to unauthorized absence at 0730.

040525:	Applicant from unauthorized absence at 0910 (1 day).

040526:	NJP for violation of UCMJ, Article 86 (5 specs) (Unauthorized absence)
Specification 1: ITSA N_ W_ L_ (Applicant), USN, did at or about 0730, 6 May 2004, without authority, absent herself from her organization and did remain so absent until at or about 0830, 6 May 2004.
Specification 2: ITSA N_ W_ L_ (Applicant), USN, did at or about 0730, 18 May 2004, without authority, absent herself from her organization and did remain so absent until at or about 0755, 18 May 2004.
Specification 3: ITSA N_ W_ L_ (Applicant), USN, did at or about 0730, 19 May 2004, without authority, absent herself from her organization and did remain so absent until at or about 1045, 19 May 2004.
Specification 4: ITSA N_ W_ L_ (Applicant), USN, did at or about 0730, 20 May 2004, without authority, absent herself from her organization, and did remain so absent until at or about 0845, 20 May 2004
Specification 5: ITSA N_ W_ L_ (Applicant), USN, did at or about 0730, 24 May 2004, without authority, absent herself from her organization, and did remain so absent until at or about 0910, 25 May 2004.
Violation of UCMJ, Article 92 (Failure to obey order or regulation):
Specification: ITSA N_ W_ L_ (Applicant), USN, having knowledge lawful order issued by OPNAVINST 6110.1G, did on 30 April 2004 fail to obey.
	Award: Forfeiture of $586 per month for 2 months, restriction for 30 days, reduction to E-1.  No indication of appeal in the record.

040528:	Applicant declined treatment for drug/alcohol abuse, drug/alcohol dependent on 040415.

040601:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040525, tested positive for amphetamine/methamphetamine.

040602:	COMNAVSURFPAC San Diego, CA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

040603:	Applicant separated.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040603 under other than honorable conditions for misconduct due to drug abuse (A).  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 (B and C).

Issue 1:  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable.  Normally, to permit relief a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  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.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by three nonjudicial punishment (NJP) proceedings.  Her first NJP resulted from her 44-day violation of Article 86 (unauthorized absence) while serving a civilian conviction for possession of a controlled substance and DUI. A second NJP for violation of Article 128 (assault) followed shortly thereafter.  The third NJP for five violations of Article 86 (unauthorized absence) and one violation of Article 92 (failure to obey and order or regulation) clearly documents the Applicant’s blatant disregard for authority.  The Applicant tested positive on a urinalysis for amphetamine/methamphetamine, this violation of Article 112a (wrongful use of a controlled substance) though unadjudicated substantiates the misconduct for which she was separated.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.   Separation processing is mandatory for sailors who abuse illegal drugs and generally results in a characterization of service of under other than honorable conditions.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief 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 should be provided to the Board include credible evidence of a substance free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant did not submit documentation for the board to consider.  Based on a lack of sufficient post service factors 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.  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 V, Para 502, Propriety.

C.  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.