Author: CAP
Last saved by: joyce.meeks
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Docket No. ND05-01406

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

FOR OFFICIAL USE ONLY

 ex-MMFN, USN
Docket No. ND05-01406

Applicant’s Request

The application for discharge review was received on 20050823.  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 designate the Disabled American Veterans as his representative.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060420.  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: 

“To the review committee:

My discharge was inequitable because it was based on one isolated incident in 75 months of honorable service with no other adverse action.  My record clearly shows my competence as a sailor and my extreme dedication to duty.  My evaluation were of the highest order and I never received any other condemnations while serving in the Navy.  At the time of my discharge I was young and didn’t realize that my actions would be so detrimental to my future.  I am currently pursuing my associate’s degree in Registered Nursing at Del Mar College in Corpus Christi, Texas.  I have been on the Deans List since January 2003.  I am a member of the International Honor Society, Phi Thetta Kappa.  My current grade point average is 3.26 and has been higher since I started my colligate career in 2002.  

The mistake I made when I was 24 has reminded me constantly of being responsible for my actions.  I don’t want this to place in vein my efforts to be a productive and contributing member of the medical world and society as a whole.  My criminal record has been, still is, and will be free of any blemish that would discredit me or my family.  I have two children who I have helped raise and I want them to be able to learn from my mistakes and see that you can start over and be successful.  I am graduating in December 2005 and would be blessed to be able to start my life over with a clean record.  I have no doubt that you can find it in your hearts to forgive the one mistake that I made and see the promising future that I have and how much of an asset to society that I will be.  Thank you for your time and patients.”

Sincerely, [signed] D_ R_ H_, Jr    June 20, 2005

Additional issues submitted by Applicant’s counsel/representative (Disabled American
 Veterans): 

“The applicant requests the characterization of service received at the time of discharge be changed to Honorable.  The applicant states he made a grave mistake in his youth with the misconduct due to drug abuse while in the U.S. Navy.  He requests that the Board consider his 75 months of honorable service; his evaluations were of the highest order; he never received any other misconduct, and he was a competent sailor with extreme dedication to duty.  

He requests that the Board consider his post service achievements: He is pursuing his associate degree in Registered Nursing at Del Mar College in Corpus Christi, Texas.  He states he has been on the Dean’s list since Jan 2003.  He is a member of the International Honor Society, Phi Thetta Kappa.  Grade point average 3.26 (See the Former Service Member’s Statement).  Also, attached are character letter’s and the applicant’s school transcripts to support his case.  

Your most favorable consideration in the aforementioned matter is greatly appreciated.”

DAV

Documentation

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

Applicant’s DD Form 214
Letter of Recommendation from B_ S_, Associate Professor, dtd March 21, 2005
Letter of Recommendation from S_ S_, Associate Professor, dtd March 31, 2005
Letter of Reference from G_ H_, Ed.D, dtd June 13, 2005
Unofficial Undergraduate Academic Record, dtd May 25, 2005 (4 pgs)
DAV Cover Letter dtd August 11, 2005
DAV benefits claim application dtd June 20, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19920811 – 19920817		COG
	Active:    USN			19920818 – 19980806		HON

Period of Service Under Review:

Date of Enlistment:  19980807		Date of Discharge:  19981110

Length of Service (years, months, days):

	Active:    00  03  03  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  23

Years Contracted:  3 (3 month extension)

Education Level:  12				AFQT:  61

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Award, National Defense Service Medal, Battle “E” Ribbon.

*Not Available.

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: 

980807:	Reenlisted this date for a term of 3 years.

980923:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance (marijuana).
Award:  Forfeiture of $287.00 pay per month for 1 month, restriction to Lackland AFB and extra duty for 14 days, reduction to E-3.  No indication of appeal in the record.

981110:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, per MILPERSMAN 1910-146.

Service Record did not contain the Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981110 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).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that his discharge is inequitable because it is based on a single isolated incident in 75 months of total 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.  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 a nonjudicial punishment proceeding for a violation of UCMJ Article 112a, wrongful use of a controlled substance.  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’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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including his letters of recommendation and undergraduate transcripts.  After careful consideration, the Board concluded the Applicant’s 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 additional evidence related to this 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.  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.

D.  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