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

Docket No. ND05-01057

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

FOR OFFICIAL USE ONLY

 ex-FR, USN
Docket No. ND05-01057

Applicant’s Request

The application for discharge review was received on 20050606.  The Applicant requests the Discharge 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 20051117.  After a thorough review of the 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 character 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:

“First issue I would like to address is the one at the pharmacy in Dubai (1997) West-Pac aboard the USS Constellation CV-64 Although I stated the facts how I witnessed them regarding the steroid(s) and how I came to possess them I had received a much harsher punishment that altered my perception on the legal system and my fellow shipmates aboard the Constellation.  It seemed, and I believed at that time I was shunned/outcast from all engineering Dept.

Second issue is my discharge due to misconduct (Drug Abuse) This was an improper discharge because my beliefs were (are) that my preservice civilian record of my drug use was used in the discharge proceedings, rendering me at the mercy of the Board conducting the case.

Third issue would be my involuntary separation I strongly feel that the chain of command could have taken better actions in regards to my (being) counseling, Re-habilitation(s) program(s) to show that I was apart of the family instead of jumping to the most severe punishment.  I never denied or eluded any of my shipmates and I miss being a sailor on the Connie, even though I would love to finish my tour.  I would settle for my O.T.H to upgrade to a General.

Sincerely yours FR (P_, J. E.) (Applicant)”

Documentation

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

Four pages from Applicant’s service record
Employment reference letter from Lt. S_ W. Q_, dtd October 10, 1998
Applicant’s diploma, dtd June 11, 1991
Greater Skyline Hills Community Association Newsletter, undated
Letter to Applicant from Poetry.com with Editor’s Choice Award certificate, dtd March 23, 2004
Applicant’s Associated Technical College Diploma, dtd July 31, 2003
Employee separation report for separation effective November 19, 1998
Certificate of completion of HIV, Hepatitis and STD’s Prevention Class, dtd November 4, 2004
4 pages from “With Excellence” (magazine/newsletter), Winter 2000 issue

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960119 - 19960520	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960521		Date of Discharge:  19980306

Length of Service (years, months, days):

	Active:    01  09  02  (Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  12 days
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4

Education Level:  12				AFQT:  43

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)			Behavior:  3.0 (1)		OTA:  3.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon

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: 

961216:	Applicant signed USN Drug Abuse Statement of Understanding.

970115:	Counseling:  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available.

970224:	Counseling:  Advised of deficiency (personal behavior), notified of corrective actions and assistance available.

970328:	Counseling:  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available.

970502:	Counseling:  Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.  Applicant refused to sign.

970718:	Counseling:  Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.  

970818:	NJP for violations of UCMJ:
Article 92:  In that FA J_ E. P_ (Applicant), USN, USS CONSTELLATION (CV 64), on active duty, did, on board USS CONSTELLATION (CV 64), on or about 20 July 1997, violate a lawful order, to wit: USS CONSTELLATION (CV 64) Notice 3128, dated 19 July 1997, by wrongfully taking a taxi, leaving the Free Trade Zone without an E-6 or above escort, and entering a pharmacy.
Article 112a (2 specs):
Specification 1: In that FA J_ E. P_ (Applicant), USN, USS CONSTELLATION (CV 64), on active duty, did, on board USS CONSTELLATION (CV 64), located at Jebel Ali, United Arab Emirates, on or about 20 July 1997, wrongfully possess steroids onboard a vessel, to wit: USS CONSTELLATION (CV 64).
Specification 2: In that FA J_ E. P_ (Applicant), USN, USS CONSTELLATION (CV 64), on active duty, did, on board USS CONSTELLATION (CV 64), located at Jebel Ali, United Arab Emirates, on or about August 1997, wrongfully use steroids.
	Award:  Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Appealed 970821.  Appeal denied 970907.

970818:	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 as evidenced by your nonjudicial punishment on 18 August 1997 and misconduct due to commission of a serious offense as evidenced by your nonjudicial punishment on 18 August 1997.

970818:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

970828:	Counseling:  Advised of deficiency (performance and personal behavior) and advised of available assistance.

970913:	NJP for violation of UCMJ, Article 92:
	Specification: Dereliction of duty.  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 020316.]

971028:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed misconduct due to drug abuse and found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended general (under honorable conditions) discharge, suspended for 12 months.

980123:	Applicant to unauthorized absence at 0645 on 980123.

980128:	Drug and Alcohol Abuse Report: PCP abuse, ashore off duty.  Random urinalysis 980107.  CAAC recommended separation.  Physician found Applicant not dependent.  Comments: Member has no potential due to positive drug test.  

980204:	Applicant from unauthorized absence at 0645 on 980204.

980204:	NJP for violation of UCMJ, Article 86:
	Specification: UA from unit at 0645, 23Jan98 until 0645, 04Feb98.
Violation of UCMJ, Article 112a: Wrongful use of phencyclidine.
	Award:  Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

980210:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment on 4 February 1998.

980211:	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.

980213:	NJP for violation of UCMJ, Article 112a:
	Specification: Wrongful use of marijuana on 980204.
	Award:  Bread and water for 3 days.  No indication of appeal in the record.

980306:	DD214:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse.

980316:	Commanding Officer, USS CONSTELLATION (CV 64) informed BUPERS the Applicant had been discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “FR P_ (Applicant) went to an administrative separation board for the 18 August 1997 mast for wrongfully using steroids and for violation of a lawful general order.  No misconduct was found for drug abuse; misconduct was found for the orders violation.  The board recommended a suspended general discharge.  This package was forwarded to BUPERS on 20 November 1997.  After this finding FR P_ (Applicant) went to mast two times for VUCMJ Article 112a.”

980325:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Random urinalysis 980205.  CAAC recommended separation.  Physician found Applicant not dependent.  Commanding Officer recommended separation.  Comments: Member has no further potential due to positive drug test.  Member was found non dependent and is being administratively discharged from the service.  Member was awarded 45 days restriction and extra duty plus forfeiture of one months pay.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980306 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

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 four nonjudicial punishment proceedings for violations of Articles 86, 92 and 112a of the UCMJ.  The evidence of record indicates the Applicant abused phencyclidine (PCP), marijuana and steroids.  The Applicant was also counseled on six occasions for performance and conduct.  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.

The Applicant contends that his discharge is improper because he was punished too harshly for his violations of Article 112a (wrongful possession and use of steroids) that resulted in NJP on 19970818 and that, subsequent to his NJP, he was treated unfairly by his department.  On 19970818, the Applicant was awarded punishment for two specifications of violating Article 112a and one specification of violating Article 92.  The Applicant’s violations of Articles 92 and 112a are serious offenses which carry the maximum punishment of a bad conduct discharge.  The Board could find no improprieties or inequities in the Applicant’s nonjudicial punishment proceedings, resulting award or the subsequent treatment by his department.  Relief on this basis is denied.

The Applicant contends that his discharge due to drug abuse was improper because he believes that his preservice drug use was used in the discharge proceedings.  The Applicant also contends that his command could have offered him counseling and rehabilitation instead of “jumping to the most severe punishment.”  The Applicant is reminded that his violations of Article 112a made him eligible for a bad conduct discharge via special court-martial, therefore, he did not receive “the most severe punishment” possible for his violations.  Regarding the Applicant’s contention that his discharge was improper because his preservice drug use was considered, the Board found no indication in the record that the Applicant’s preservice drug use was unduly considered by the Applicant’s command or the separation authority.  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.  Regarding the Applicant’s assertion that he could have been offered counseling, the Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug abuse.  The Applicant’s allegations, that he was not offered rehabilitation, do not refute the presumption of regularity in this case.  Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 sufficient post-service 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.  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 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey an order/regulation or Article 112a, wrongful use or possession of a controlled substance.  

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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