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Docket No. ND05-01176

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

FOR OFFICIAL USE ONLY

 ex-UTCR, USNR
Docket No. ND05-01176

Applicant’s Request

The application for discharge review was received on 20050706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20060131.  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 and reason for 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:

“My discharge was inequitable because it was based on one isolated incident during my time of service with no other adverse action.”

Documentation

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

Letter from Applicant, dated June 22, 2005
Letter from Applicant, dated August 16, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  None	
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930728		Date of Discharge:  19940902

Length of Service (years, months, days):

	Active:    01  00  08
	Inactive:  00  00  28

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  17 (Parental Consent not found in record)

Years Contracted:  5

Education Level:  NFIR*				AFQT:  NFIR

Highest Rate:  UTCA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (1) 		Behavior:  3.0 (1) 		OTA:  3.8 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

*Not found in record

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

930825:	Commenced active duty for a period of 5 years [extracted from DD-214 and CO’s letter].

940506:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 940502, tested positive for THC.

940708:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana.
Award:  Forfeiture of $466.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

940714:	Drug and Alcohol Abuse Report:  Marijuana abuse as a result of a random urinalysis, found not dependent, not eligible for treatment, recommended for separation not via VA Hospital.  

940721:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by CO’s NJP held on 8 July 1994 for violation of UCMJ Article 112a (Wrongful use of marijuana).  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

940801:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.  Applicant did not object to separation.

940804:	Commanding Officer, Naval Mobile Construction Battalion recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO’s NJP held on 8 July 1994 for violation of UCMJ Article 112a (Wrongful use of marijuana).  Commanding Officer’s comments:  “The Navy has invested substantial time and funding to train UTCR W_ (Applicant).  As a result of his drug use and eventual separation from the Naval service he will have served just over a year of his five year obligation.  To maintain good order and discipline, and in compliance with Navy policy, I recommend an Other Than Honorable discharge.”

940825:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940902 by reason of misconduct due to drug abuse (A) 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 (B and C).  

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

The Applicant contends that his discharge is inequitable because it is based on a single isolated incident during his time in service.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of UCMJ Articles 112a, wrongful drug use.  The Applicant’s misconduct reflects his failure to meet the minimum standards required for an honorable discharge.  Relief is not warranted.

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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 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