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

Docket No. ND05-01541

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

FOR OFFICIAL USE ONLY

 ex-PHAR, USN
Docket No. ND05-01541

Applicant’s Request

The application for discharge review was received on 20050922.  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 20060620.  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 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 attached document/letter: 

“While in the Navy I made a terrible mistake and chose to find an easy way out.  Enclosed is a letter stating my mistake and my reason for wanting my discharge changed. Please excuse the length of the letter I felt all I said was needed to inform you of my situation as well as my regrets.”

“To Whom It May Concern:

My name is B_ B_(applicant) and I joined the United States Navy in November of 2002.  I went through several months of the delayed entry program (DEP) and took advantage of that time by studying my DEP book thoroughly.  I created flash cards for everything in my book and took an oral board with the head of the recruiting station in Cincinnati.  He said I did the best job on the test he’s ever seen and even asked to use my flash cards for future recruits to study from.  I was advanced to E-2 before even leaving for boot camp.  Once in boot camp my division’s chief appointed me recruit chief petty officer (RCPO).  By the end of boot camp I was promoted by my chief and not only graduated head of my division but now and E-3.  I couldn’t wait to see what else the Navy had in store for me.
I arrived to the USS Carl Vinson (CVN70) during the month of September 2003 while the ship was import Korea.  I spent the remainder of the time the ship was on West PAC getting familiar with the photo lab, the ship, and all my responsibilities.  It was a big change from boot camp and A-school, but I felt I was up to the challenge.  West PAC ended and we headed into our homeport of Bremerton, Washington where we would be for at least another year.  I started making friends, got a great apartment in town, and even a nice car.  Things were going great for me.  In December of 2003 I met a guy named N_ T_, we started dating and I was so happy, I felt I really liked him.  I started learning that N_ came with a pretty intense load of baggage but at the time I didn’t care.  I was already 5 months into dating this guy when I found out that he was married to a woman in California.  He told me that they were married for the money and nothing else so I tried to let that go.  Later on during the month of May 2004 I found out that N_ still had another girlfriend who at the time was pregnant and believed N_ to be the father.  He kept telling me that they were not together and I shouldn’t worry and so I didn’t.  I played the dumb love struck girl.  My chain of command quickly found out all the baggage that came with my dating N_ and realized that I was headed for destruction.  N_ was on his way out of the Navy, but taking me right along with him.  They saw in me a great sailor with so much potential and wanted me to get help quickly so as not to throw away my future.  I was so “in love” I couldn’t see that what they were doing for me was only for my benefit, instead I thought everyone was out to get me.  I was given a direct order by my chain of command not to be in contact on or off the ship with N_.  I didn’t understand why I was being told what decisions to make regarding my personal life and I quickly rebelled.
I started sneaking to see N_ and began getting caught.  I was sent to XOI for disobeying a direct order and while standing in front of the XO he looked at me and said “Airman B_(applicant) you were an all star sailor, what happened?” I started feeling sorry for myself and looked at my situation with anger.  I wouldn’t be here if I were able to make my own decisions.  I saw no fault for my actions.  I received my punishment and was placed on restriction to the boat.  During my restriction time I started being physically harassed by N_’s ex girlfriend.  His ex girlfriend attacked me on several occasions while in the navy.  She blamed me that N_ was no longer with her.  I tried to do the responsible thing and tell someone above me what was going on.  I filed several complaints on different occasions regarding the harassment.  I requested a military protective order against the girl and it was violated on several occasions.  I tried to get something done about it but no one seemed to want to help me out.  They felt that for her to attack me I must have provoked the situation.  I didn’t know whom else to turn to.  Not only did my chain of command now lack trust in me but my family as well.  I started losing friends because they saw me as a troublemaker.  I quickly went back to the comfort I felt from N_.  I was at rock bottom.  I was feeling so much pressure from everywhere I turned N_ felt like hero when he told me everything was going to be okay and that he would be there for me.  Once off of restriction N_ and I went to a party our first weekend out.  I talked to him about how I was feeling depressed due to the recent situation and how I had no ones trust anymore and my friends were no longer there for me.  We discussed the upcoming Captain’s Mast we were both scheduled to attend the following week regarding us disobeying the direct order to stay away from each other.  He told me that due to the fact he had been in trouble so much that he was not going to get off as easy as I would.  I knew he meant he was getting kicked out.  He talked to me about us getting out together and then we would be allowed to be with each other without hiding it.  I told him I wasn’t sure that I was ready to get kicked out.  The more the night went on I decided I wanted to be with him and to us the best solution was to pop positive on the urinalysis I never saw the results to the urinalysis, whether I did actually pop is a mystery to me, but during the time I was waiting for the results I got worried and told my chain of command that I was afraid I might pop.  I told them hoping for help.  I realized at the time, but only too late, that I had been making a terrible mistake.  I went back to mast and was kicked out of the Navy.  My “perfect life” with N_ quickly ended when the drama of the Navy ended.  I felt my entire world crash around me.  I eventually moved back to Ohio with my family and started my life over again.  I felt so stupid for all the good things I threw away.  I had so much going for me when I was in the Navy, but never saw it for what it was worth.  While in the Navy I was promoted twice, started college, received a letter of accommodation, finished all my in -rate qualifications, started on my Air Warfare, and was testing for third class petty officer.  I regret all that I messed up for “true love.”
Since leaving the Navy I have been working two jobs for going on a year now.  I work everyday and never call off and have perfect attendance.  I haven’t been in any legal trouble and have since never touched an illegal substance.  I realize now after a year of being out and changing my life, living on my own, and doing things for myself what a stupid mistake I had made.  I look at my life now and I realize that the only thing I want more than to be happy is to receive my honorable discharge properly.  I have spent the last month doing all the research I can to see what it will take for me to get my discharge changed to that of something where I can go back in and finish what I started 3 years ago.  I have spoke to recruiters from the Navy and this is what I am told my first step is.  I apologize for the length of this letter, I felt as if I should give you a little background on me.  I needed to accept the fact that what happened in the Navy was not my chain of commands fault, nor even N_’s fault, but my won fault for not stopping to realize what I was giving up.  I am asking that you please give this letter some consideration and that if there is a way for my discharge to be changed so that I might have a second chance I would give anything for that.  I understand that what I did was wrong and stupid and I am not asking for you to look past the fact that I made a mistake I am only asking that you give me a second chance.  I am not a troublemaker; I have always been a good student, a good daughter, hard worker, and a good citizen.  I made a terrible mistake and I am begging for a second chance to achieve my dream and finish serving my country.

Thank you,

B_ R_ B_(applicant)”

Documentation

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

Facsimile coversheet, dtd June 19, 2006
Letter from Applicant, dtd June 16, 2006
Letter of Recommendation from M_ P_, dtd June 19, 2006
Reference Letter from G_ S. B_, dtd June 18, 2006
Employment Reference Letter from N_ A_, dtd June 17, 2006
Drug Test Report, dtd May 15, 2006
Local Criminal Background Check from Union Township Police, dtd June 16, 2006
Letter of Acceptance into Florida Metropolitan University Online, undtd

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020523 – 20021111		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021112		Date of Discharge:  20040920

Length of Service (years, months, days):

	Active:    01  10  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  54

Highest Rate:  PHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1) 		Behavior:  1.0 (1) 		OTA:  1.67 

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

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: 

040623:	NJP for violation of UCMJ, Article 92 (3 specs): 
	Specification 1: In that Photographer’s Mate Airman B_ B_, U.S. Navy, USS CARL VINSON, on active duty, having knowledge of a lawful order issued by Commanding Officer, USS CARL VINSON, to wit: Limitations on inappropriate behavior while on board USS CARL VINSON (CVN 70) NAVPERS 1070/613, dated 7 July 2003, an order which it was her duty to obey, did on board USS CARL VINSON, on or about April 2004, fail to obey the same by meeting behind a stateroom door for the purpose of physical or sexual gratification with Seaman Apprentice N_ E. T_, U.S. Navy.
	Specification 2: In that Photographer’s Mate Airman B_ B_, U.S. Navy, USS CARL VINSON, on active duty, having knowledge of a lawful order issued by Commanding Officer, USS CARL VINSON, to wit: Limitations on in appropriate behavior while on board USS CARL VINSON (CVN 70) NAVPERS 1070/613, dated 7 July 2003, an order which it was her duty to obey, did on board USS CARL VINSON, between April and May 2004, fail to obey the same by being in a rack in the Operations Department Female Berthing for the purpose of physical or sexual gratification with Seaman Apprentice N_ E. T_, U.S. Navy.
	Specification 3: In that Photographer’s Mate Airman B_ B_, U.S. Navy, USS CARL VINSON, on active duty, having knowledge of a lawful order issued by Photographer’s Mate Chief Petty Officer, D_ S_, U.S. Navy, to cease all contact with Seaman Apprentice N_ T_, U.S. Navy, an order which it was her duty to obey, did, on board Naval Station North Island, CA, on or about 7 June 2004, fail to obey the same by wrongfully walking and talking together with Seaman Apprentice N_ T_, U.S. Navy.

	Violation of UCMJ, Article 134: In that Photographer’s Mate Airman B_ B_, U.S. Navy, USS CARL VINSON, on active duty, did, on board, USS CARL VINSON, on or about April 2004, unlawfully enter several staterooms onboard USS CARL VINSON, by using a stateroom master keycard in which she was not authorized to use.
Award:  Forfeiture of $693 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

040805:	Forfeiture of pay and reduction in pay grade awarded at NJP on 040623 vacated due to continued misconduct.

040820:	NJP for violation of UCMJ, Article 92 (5 specs):  Failure to obey a lawful order.
	Violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award:  Forfeiture of $621 pay per month for 2 months, reduction to E-1, restriction and extra duty for 45 days.  No indication of appeal in the record.  

040820:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct pattern of misconduct, commission of a serious offense, and misconduct drug abuse.

040820:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040911:	Commanding Officer, USS CARL VINSON (CVN 70), recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct; misconduct commission of a serious offense and misconduct drug abuse.  Commanding Officer’s comments:  “PHAR B_ (Applicant) has been to Captain’s Mast twice during her time on board USS CARL VINSON.  PHAR B_’s  chain of command has expended an extraordinary amount of man hours mentoring and counseling her, yet she remains a continuous administrative burden and has demonstrated no desire to improve her behavior.  On 27 July 2004, PHAR B_ provided a urine sample that subsequently tested positive for ecstasy.  On 20 August 2004, during Captain’s Mast PHAR B_ admitted that she did use ecstasy and based on her positive urinalysis results received on 16 August 2994, it is clear that PHAR B_ has violated the Navy’s Zero Tolerance Policy.  She has no potential for further naval service.  Consequently, I strongly recommend separating PHAR B_ for misconduct due to drug abuse and that her characterization of service be Other Than Honorable.”

040915:	COMCARGRU THREE 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 20040920 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 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 two nonjudicial punishment proceedings for violations of Articles 92, 112a and 134 of the UCMJ.  The Applicant’s eight specifications of Article 92 violations and the Applicant’s use of illegal drugs are considered serious offenses.  The Applicant’s award at NJP on 20040623 was partially suspended but vacated on 20040805 due to her continued misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

There is credible evidence in the record that the Applicant used illegal drugs.  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 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.  Relief denied.

The Applicant implies that her discharge is inequitable based on her post service conduct.  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.  The Applicant provided documentation supporting non-involvement with civil-authorities, employment records, an acceptance letter to university and a drug test result.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  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.  At the time of the hearing, the Applicant can provide additional documentation to support claims of post-service accomplishments, to include additional evidence of a substance free lifestyle, documentation of community service and documentation of educational accomplishments.  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 28 April 2005, 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 order/regulation or Article 112a, illegal use 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.

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