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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00190

Applicant’s Request

The application for discharge review was received on 20051107.  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 20060926.  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 and/or attached document/letter:

“Dear Sir,

My name is P_ F_(Applicant).  I joined the Navy 14 Nov. 2001.  I am respectfully requesting a review and upgrade of my discharge, from OTH to General under honorable.
I enjoyed the experience and felt I was an addition to the force. I completed my BMRs and scored high on my PO 1 and PO 2.  Squadron testing to achieve Plane Captain Qualifications was completed in an exceptionally expedient time frame. I worked hard.
Oct 2003 I started to experience a psychological deterioration of my mental state.  I expressed to my CO the need for help and no action was taken. I was denied a mental health evaluation despite the request for one by the hospital.  I have since been diagnosed with schizo- affective disorder. The dd214 states drug abuse.  There is no solid evidence to date that verifies this accusation.  My intent in joining the service was honorable.  Completing my commitment was top priority. I am enclosing lay statements that verify my stability prior to entering.  Please recognize that I worked hard and did my best.  Please review my file and grant a general under honorable due to these unfortunate circumstances.

Thank you,
P_ F_(Applicant)”

Documentation

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

Character Reference ltr from P_ M. F_, Applicant’s grandmother, dtd October 3, 2005
Character Reference ltr from J_ M. M_, undtd
One page from Applicant’s medical record
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010829 - 20011113	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011114		Date of Discharge:  20021220

Length of Service (years, months, days):

	Active:    01  01  07
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  32

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)			Behavior:  2.0 (2)		OTA:  2.83

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

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: 

020704:	Medical evaluation at Urgent Care Clinic, Naval Hospital, Lemoore CA, S_ P_, M.D.:  BiB (brought in by) security for drunk and disorderly behavior, (illegible), not cooperative, verbally abusive.  Says fell from a skateboard several times.  No helmet.  C/O (complains of) upper back pain.  (Illegible).  Needs to urinate c/o bladder pain.  See fit for duty exam form.  Verbally abusive & threatening to attack UCC staff.  Spine full range of motion (illegible).  Reason:  ETOH/back pain.
	Assessment: 1. ETOH abuse.  2. ? Depression.  3. strain back.  Plan: Not fit for duty.  Release to custody of command.  Follow up = PC (illegible) & mental health exam.  [Extracted from Applicant’s supporting documents.]

020725:	Applicant completed 3-day PREVENT training course.

020820:	CO’s NJP for violation of UCMJ, Article 91: (Insubordinate conduct toward a petty officer).
Violation of UCMJ, Article 92: (Failure to obey order or regulation).
Violation of UCMJ, Article 117: (Provoking speeches or gestures).
Violation of UCMJ, Article 128: (Assault).
Violation of UCMJ, Article 134: (Disorderly conduct, drunkenness).
Violation of UCMJ, Article 134: (Indecent language).
Date of Offenses:  4 July and 14 July 2002.
	Award:  Forfeiture of $619 per month for 2 months (suspended for 6 months), correctional custody for 30 days, reduction to E-2.  No indication of appeal in the record.

020821:	Retention Warning:  Advised of deficiencies in performance (Substandard performance as evidenced in underage alcohol drinking, during July 2002 and screening on 16Aug02.).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  Applicant desired to accept treatment.

021107:	NAVDRUGLAB (location not identified in record) msg 072045Z NOV 02 reported Applicant’s urine sample, received 021101, tested positive for amphetamine.

021109:	Suspended forfeiture of pay awarded at NJP on 020820 vacated.

021113:	CO’s NJP for violation of UCMJ, Article 112a: (Wrongful use of controlled substance).
	Date of offense: 1 November 2002.
	Award:  Forfeiture of $552 per month for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

021211:	Applicant notified of intended recommendation for discharge by reason of misconduct – drug abuse with the least favorable characterization of service as under other than honorable conditions.

021211:	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.

021220:	Commanding Officer, Strike Fighter Squadron 147, recommended discharge under other than honorable conditions by reason of misconduct – pattern of misconduct and misconduct – drug abuse.  Commanding Officer’s comments:  “Airman Recruit F_(Applicant) is an average Sailor, who had unlimited potential.  She was given several opportunities to correct her deficiencies, unfortunately, she lacks the maturity and emotional fortitude the Navy requires of its Sailors.  Her basic disregard for the Navy’s Copy Values is a detriment to the good order and discipline of my command.  In light of the Navy’s zero tolerance policy for drug users and her further violations of the UCMJ, she is unsuitable for continued Naval Service.  I highly recommend Airman Recruit F_(Applicant) be immediately discharged from the Naval Service under Other Than Honorable conditions.
Member separated 20 December 2002 for Misconduct – Pattern of Misconduct and Misconduct – Drug Abuse.  Member was awarded Other Than Honorable, SPD Code:  JKK.”

021220:	DD214:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021220 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 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 construed Applicant’s issue that “[t]he dd214 states drug abuse.  There is no solid evidence to date that verifies this accusation,” as Applicant’s denial of illegal drug use.  The Board found that 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 Applicant’s allegations, that she was denied a mental health examination, do not excuse misconduct.  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 NDRB did note a technical impropriety in the Applicant’s separation processing.  The record indicates that separation was effected by the Commanding Officer locally prior to forwarding his recommendation for discharge to BUPERS for final disposition.  Nevertheless, the NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords her no relief.  The Applicant’s service was marred by a retention warning, a vacated suspended forfeiture of pay and 2 nonjudicial punishment proceedings for violations of Articles 91, 92, 112a, 117, 128 and 134 of the UCMJ.  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.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 92, 112a and 134 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  The NDRB concluded that the discharge would have remained the same if the error had not been made and thus relief based upon this error 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.  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