Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-01005

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

FOR OFFICIAL USE ONLY

 ex-MSSR, USN
Docket No. ND05-01005

Applicant’s Request

The application for discharge review was received on 20050601.  The Applicant requests his 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter: 

“I believe, although according to the Navy’s Zero Tolerance Policy, that my “Other Than Honorable” discharge was inadequate.  If you review the levels of the controlled substance in my system, you will see that they are extremely low.  Although it was wrong, I don’t believe that a minor fault in judgment four years ago should affect my career goals for a lifetime.  I am fully accountable for my past actions, and deeply regret them.  I believe you should learn from your mistakes to become a better person, rather that be punished for then for a lifetime.  I have grown a great deal since my discharge and am now married with two wonderful stepdaughters, and all I want is to start my life and to begin a career and support my family the way they should be.  In closing, I ask you to please upgrade my discharge, because I believe one mistake should not hinder any one person’s future goals.

Thank You, P_ O. B_ 5-26-2005

Signed”

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from Mrs. P_ A. B_, Applicant’s mother, dtd May 19, 2005
Character Reference ltr from P_ A. B_, Applicant’s father, dtd May 18, 2005
Character Reference ltr from L_ A. B_, Applicant’s wife, undtd
Character Reference ltr from E_ W. S_, dtd May 20, 2005
Character Reference ltr from A_ S_, dtd May 20, 2005
Character Reference ltr from K_ G_, undtd
Character Reference ltr from N_ M_, Realtor, dtd May 22, 2005
Character Reference e-mail from D_ D_, Applicant’s brother-in-law, dtd May 20, 2005
Character Reference e-mail from A_ D_, Applicant’s sister, dtd May 20, 2005
Letter from the Applicant, dtd May 21, 2005
Job reference from C_ J. G_, dtd May 25, 2005
Job reference ltr from R_ A. G_, PSNS retired employee, dtd May 21, 2005
Job reference ltr from L_ Y. G_, dtd May 21, 2005
Certificate of completion for JOD/Watch Captain Seminar, dtd April 10-12, 2001
Physical Excellence Award, undtd
Certificate of completion for Food Service Records and Returns, dtd March 30, 2001
Certificate of completion for Basic Enlisted Submarine Course, dtd October 12, 2000
Certificate of completion for Submarine Food Service Watchstander, dtd October 20, 2000
Letter of Appreciation, NTTC Det Lackland AFB, Tx, dtd May 11, 2001
Letter of Appreciation, dtd July 6-9, 2000
Certificate of Training for USAF/USN Consolidated Food Service Course, dtd August 25, 2000
Delayed Enlistment Program certificate, dtd March 31, 2000
Eighty pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000331 - 20000423	
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000424		Date of Discharge:  20010824

Length of Service (years, months, days):

	Active:    01 04 01		(Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  30 days

Age at Entry:  20

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  Illegible

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB (1)		Behavior:  NOB (1)		OTA:  NOB (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  SSBN Deterrent Patrol Pin

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620

Chronological Listing of Significant Service Events: 

000331:	Applicant briefed on Navy's policy regarding drug and alcohol abuse, NavCruit Form 1133/65

001110:	Applicant briefed on Navy's policy regarding alcohol abuse, NavPers form 1070/613.  

001116:	Applicant briefed on Navy's policy regarding drug abuse, NavPers form 1070/613.  

010605:	NJP for violation of UCMJ, Article 111:
	Specification: Drunken driving.
	Award:  Reduction to E-1.  No indication of appeal in the record.

010605:	Retention Warning:  Advised of deficiency (Awarded CO’s NJP on 5 June 2001 for violations of Articles 111, and 112a.  Article 112a was dismissed.) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010720:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a:  In that Mess Management Specialist Seaman Recruit P_ O. B_, U.S. Navy, Submarine Groton 9, on active duty, did, on or about 26 June 2001, at or near Silverdale, Washington, wrongfully use amphetamines/methamphetamines.

010720:	Charges referred to summary court-martial.

010720:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 112a:
	Specification: Wrongful use of a controlled substance, to wit: methamphetamine/amphetamine, on or about 26 June 2001.
	Finding: to charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $694.00, confinement for 30 days.
	CA action 010723:  Sentence approved and ordered executed.
	
010726:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

010726:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010806:	Commanding Officer, Staff Enlisted Personnel, Submarine Group 9, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Seaman B_ (Applicant) has used illicit drugs directly violating the Navy’s policy of zero tolerance.  Accordingly, he has no potential for productive naval service.  By separate action he was disqualified from duty in submarines.  I strongly recommend that he be separated from the naval service and his service be characterized as Other Than Honorable”.

010809:	Commander, Submarine Group 9, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record contained complete administrative discharge package however was missing elements of the summary of service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010824 by reason of misconduct due to drug abuse (A) with an under other than honorable conditions characterization of service.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  

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 outweigh the positive aspects of the member's military record.  The Applicant’s service record was marred by nonjudicial punishment (NJP) for a violation of UCMJ Article 111 (drunken driving) and a summary court-martial for a violation of UMCJ Article 112a (wrongful use of a controlled substance).  There is credible evidence in the record that the Applicant used illegal drugs.  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.  Processing for separation is mandatory for sailors who abuse illegal drugs.  Separation under these conditions generally results in an under other than honorable conditions, characterization of service.  Relief denied.

The Veterans Administration determines the eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization based solely on the issue of obtaining Veterans' benefits. 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.  The Applicant’s issue is without merit.  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 provided 12 character/job reference letters, 80 pages from his service record and 6 certificates of training earned during his service, as documentation of his post service accomplishments.  The Applicant also stated that he had grown up a great deal since his discharge.  After careful consideration of the Applicant’s accomplishments, the Board concluded that his post-service achievements have been insufficient to mitigate his 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 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), 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 5420.174D 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