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Docket No. ND06-00003

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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND06-00003

Applicant’s Request

The application for discharge review was received on 20020928.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060629.  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 letter: 

“The Desire to reenlist, Personal accomplishment, I need to complete where I didn’t finish.  I’m not a failure, when I reenlist I’m older and mature enough to achieve in life.  That’s one of my goals in life, to complete my EAOS.  So that I can have full VA Benefits, Make it work for me.  And be proud of myself for my accomplishments.  I believe it was an improper way to discharge me even though I had misconduct I merely was distorted and distracted due to family disturbances.”

“Item 6  (the beginning)
	I needed a lot of room to explain the issues regarding my issue that was not completely properly examined.  I never experimented with drugs to know enough about them, the one time I did I dropped dirty.  I was still will and tried to stay, but I was discharged on the spot, an OTH Discharge.  I guess it was because I had previously went hone on UA (unauthorized absence) status, I went home like that a couple of times, because I had been turned down for a leave chit.  What I’m trying to tell you (NDRB) that I would need or should get another opportunity to reenlist, that’s my goal.  The only main reason I’m saying this is my belief of not being properly reviewed or helped in my case.  I believe my command wanted to hurry up and do something with me, so they hit me with an OTH and sent me on restriction.  I was sentenced on Nov. 1^st 2002 and my command left on Nov. 2^nd 2002 for West pack, I don’t believe my C.O. and chain of command took enough time to review my case and personal history.

P.S. I can explain again in the board if needed.”

Applicant’s Remarks:  Taken from the DD Form 293 to the Board.

“I would’ve done this a couple of years ago, but I didn’t receive the proper know how and procedures of doing it.  And I know I can prove that I deserve an Honorable Discharge, that’s why I would rather come to the board in person, so that I can prove and explain myself.”

Documentation

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

Applicant’s DD Form 214  (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010628 – 20010708	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010709		Date of Discharge:  20021213

Length of Service (years, months, days):

	Active:    01  05  04  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  26 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  52/32

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 	Behavior:  1.0 (1) 	OTA:  2.5 

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: 

020401:	Applicant to unauthorized absence at 0600 on 020401.

020422:	Applicant from unauthorized absence at 2125 on 020422 (20 days/surrendered).

020424:	Applicant to unauthorized absence at 0600 on 020424.

020426:	Applicant from unauthorized absence at 0530 on 020426 (2 days/surrendered).

020517:	NJP for violation of UCMJ, Article 86: Unauthorized Absence.
Violation of UCMJ, Article 87: Missing ships movement.
Violation of UCMJ, Article 112a: Wrongful use of a controlled substance
	Award:  Forfeiture of $561.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

021017:	Applicant to unauthorized absence at 0530 on 021017.

021018:	Applicant from unauthorized absence at 0730 on 021018 (1 day/surrendered).

021021:	NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 021016, tested positive for Amphetamine, Methamphetamine.

021030:	Applicant to unauthorized absence at 0745 on 021030.

021101:	Applicant from unauthorized absence at 0120 on 021101 (2 days/surrendered).

021101:	NJP for violation of UCMJ, Article 86: Unauthorized Absence.
Violation of UCMJ, Article 87:  Missing ships movement.
Violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

021101:	Due to involvement with drug/alcohol, the Applicant was offered screening and treatment by the Navy and have elected to decline screening or treatment as offered.

021101:	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, misconduct due to commission of a serious offense and misconduct due to pattern of misconduct.

021101:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

021101:	Commanding Officer, USS VALLEY FORGE (CG 50), recommended to Commander, Cruiser Destroyer Group One that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, by reason of misconduct due to a commission of a serious offense, and by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “SR B_ (Applicant) went UA at 0530 17 October 2002 and missed ships movement.  He surrendered to Transient Personnel Unit, San Diego CA on 18 October 2002.  Upon return to port on the evening of 29 October 2002, SR B_ (Applicant) returned to the ship but left again and stayed away until the early morning of 01 November 2002.  Later, on the same morning, he attempted to leave again.  He was subsequently stopped by the Petty Officer of the Watch and told not to leave.  Since SR B_ (Applicant) has been on board he has been UA from VALLEY FORGE five times, missed ship’s movement three times and admitted to using drugs on or about April 2002 of which urinalysis results came back negative. He later recanted his statement about using drugs and based on his performance in his division the command decided to retain him on board.
On 13 October 2002, a duty section sub-unit sweep urinalysis was conducted.  SR B_ (Applicant) went UA and missed ship’s movement on 17 October 2002.  On 21 October 2002, while the ship was underway in Southern California Oparea, results of the urinalysis testing were returned.  SR B_ (Applicant)’s sample tested positive for Amphetamines and Methamphetamines.  It is unknown whether alcohol was a contributing factor to his subsequent drug use.  SR B_ (Applicant) was aware of the Navy’s Zero Tolerance Drug Policy and chose to blatantly ignore it.  SR B_ (Applicant) had a pre-service history of drug use.  I recommended that SR B_ (Applicant) be separated from the Naval Service with a Characterization of Other Than Honorable.”

021201:	Commander, Cruiser-Destroyer Group ONE, authorized the Commanding Officer, USS VALLEY FORGE (CG 50) to discharge the Applicant under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021213 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).  

The Applicant alleges impropriety in that the command did not take “enough time to review my case and personal history.”  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86 (2 specs, UA), 87 (2 specs, missing movement), and 112a (2 specs, wrongful use or possession of controlled substances) of the UCMJ. Violations of Articles 87 and 112a of the UCMJ are considered serious offenses.  There is credible evidence in the record that the Applicant used illegal drugs therefore, mandatory processing for separation is required.  Separation under these conditions generally results in a characterization of service under other than honorable conditions.  The Board found no indication in the record that the Applicant was inequitably or improperly processed for separation.  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.  Relief denied.

The Applicant does not deny his misconduct but contends that his problems resulted because he was “distracted due to family disturbances."  While he may feel that his family issues were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant requests an upgrade so he can reenlist. There is no requirement or law that grants recharacterization solely on the issue of reenlistment and this issue does not serve to provide a foundation upon which the Board can grant relief.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and 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. 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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 87 – missing movement, and 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.

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