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Docket No. ND06-00232

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

FOR OFFICIAL USE ONLY

ex-AOAA, USN
Docket No. ND06-00232

Applicant’s Request

The application for discharge review was received on 20051116.  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 20061012.  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 the attached letter: 

“I feel that I was wrongfully discharge and wish to have the discharge upgraded.

To whom it may concern

I am M_ J_ (Applicant).  Thank you for your time.  I’ve served in the United States Navy from Jul 28 99 to Dec 02 03.  I was discharged from the Navy on other than honorable Charge of misconduct.  I was told that I failed on uranillas test.  If I had any type of drug in my system I was not aware of it at all.  At the time of my consumption I had to have been at a party with whom I thought were my friends.  Then I smoked Newport cigarettes and drank alcohol beverages at times.  That is the only way possible I could imagine that this could of happen.  I had a very promising career in your Navy before all of these mishaps I was about to be frocked to E-4.  I would never jeopardize that for drugs, I was very proud of myself.  I did several positive things to better myself wile I was enlisted such as, taking Navy College Pace Program, Reading, Writing, And Math and also Intro to Microsoft excel and Microsoft Word.  While I served I was awarded the Good Conduct Medal, Navy E Ribbon, National Defense Service Medal And Sea Service Deployment Ribbon.  I was also a vital team player in the safe and expeditious offload of 1,100 pallets of various air and ground ammunition, and earned verbal accolades from NWS Earl as “the best LHA offload ever” I assisted in corrosion control of over 1,500 square feet Zero defects no rework required and told that I had unlimited growth potential.  I would not throw it all away just like that.  I enjoyed my Navy career and wish that it did not end the way it did, and I enjoy encouraging people that are interested about the United States Navy to this day.

Sincerely yours
M_ L_ J_ 
(signed) M_ L_ J_ (Applicant)”

Documentation

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

Letter from L_ D. D_, Veteran Service Officer, Duplin County VSO, dtd November 2, 2005 
Letter from Applicant, undated
Reference ltr from G_ J_, Applicant’s mother, undated 
Character Reference ltr from J_ W_, dtd February 22, 2005
Letter of Recommendation from J_ H_, dtd February 23, 2005
Reference ltr from B_ S_, dtd February 21, 2005
Reference ltr from R_ W. C_, undated
Character Reference ltr from A_ M_, dtd February 9, 2005
Character Reference ltr from J_ A. B_, (date illegible)
Letter from L_ D. D_, Veteran Service Officer, Duplin County VSO, dtd January 5, 2006 
Applicant’s DD Form 214 (member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990630 - 19990727	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990728		Date of Discharge:  20021203

Length of Service (years, months, days):

	Active:    03  04  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  none

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.0 (1) 	Behavior:  1.0 (1) 		OTA:  1.33 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal for period ending 02JUL28, Navy “E” Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon

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: 

990630:	Enlistment waiver granted for pre-service marijuana use.

990630:	Applicant acknowledges understanding that illegal or improper use or possession of alcohol or drugs could result in possible administrative separation with less than an honorable discharge and loss of Veteran’s Benefits.

020415:	NAVDRUGLAB, Jacksonville, FL reports Applicant’s urine samples (x2), received 020408, tested positive for cocaine.

020823:	NJP for Violation of UCMJ, Article 86: Unauthorized absence.  Specification:  In that Aviation Ordnanceman Airman M_ L. J_, (Applicant) U.S. Navy, USS SAIPAN (LHA 2), on active duty, did on or about 24 July 02, without authority, absent himself from his unit, to wit:  Armed Sentry School located at Naval Station, Norfolk, Virginia, and did remain so absent until on or about 0700, 28 July 02. (4 days).
Violation of UCMJ, Article 92: Failure to obey lawful order, in that AOAN M_ L. J_ (Applicant), USN, USS SAIPAN (LHA 2) located at Norfolk, Virginia, on active duty, having knowledge of a lawful order issued by AO1 B_ to cut his fingernails within standards, an order which it was his duty to obey, did, on or about 020806, fail to obey the same.
Violation of UCMJ, Article 112a: Wrongful use of controlled substance, in that AOAN M_ L. J_ (Applicant), USN, USS SAIPAN (LHA 2) located at Norfolk, Virginia, on active duty, did, in the Hampton Roads Area of Virginia, on or about 020325, wrongfully use cocaine.
	Award:  Forfeiture of $657.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

020823:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service as under other than honorable conditions.   

020905:	Applicant advised of rights and elects to consult with counsel and exercise the right to submit statements to the Administrative Board or Separation Authority in lieu of a board, the right to obtain copies of the documents used to support the basis for the separation and the right to an Administrative Board.

020920:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful written order.  Specification:  In that AOAN M_ L. J_ (Applicant), USN, USS SAIPAN (LHA 2), on active duty, having knowledge of a lawful written order issued by the Commanding Officer, to wit: USS SAIPAN (LHA 2) Instructions For Restricted and Extra Duty Personnel, dated 020823, an order which it was his duty to obey, did, on board USS SAIPAN (LHA 2), located at Norfolk, Virginia, on various occasions between 020906 and 020906, fail to obey the same by wrongfully failing to attend restriction musters.
	Award:  Confinement three days bread and water.  No indication of appeal in the record.

021021:	Applicant notified of intended recommendation for discharge by additional reason of misconduct due to commission of a serious offense as evidenced by NJP of 020920 for VUCMJ, Art. 92. 

021029:	Applicant waives right to an Administrative Board.

021106:	Commanding Officer, USS SAIPAN (LHA 2) recommends to Commander, Amphibious Group TWO that the Applicant be discharged for misconduct due to drug abuse and commission of a serious offense as evidenced by nonjudicial punishment of 020920 for VUCMJ, Article 92.  Commanding Officer’s comments:  “AOAA J_ (Applicant) knowingly and willfully violated the Navy’s “Zero Tolerance for drugs” policy by using cocaine.  AOAA J_’s performance onboard USS SAIPAN has been consistently below average as documented by numerous formal counselings for disregard of rules and regulations.  Due to continued misconduct, AOAA J _was again awarded NJP on 020920 for violating my restriction orders.  Delays have been experienced with the processing of this case.  AOAA J_ tested positive for cocaine on a 020325 urinalysis.  The command received notification of the positive urinalysis in August 2002 after requesting re-transmission of the Navy Drug Lab message due to an outstanding urinalysis result.  Further, when served his administrative processing notice on 020823, AOAA J_ elected to consult with counsel.  Due to the ship’s operational schedule and NLSO Southwest’s Defense Department backlog, the initial appointment with counsel and subsequent scheduling of an administrative board could not be accomplished until 021029.  On the morning of 021029, AOAA J_ elected to waive his board.  AOAA J_’s drug use is contrary to good order and discipline, mission readiness and appropriate standards of conduct.  Accordingly, I strongly recommend his immediate separation from the naval service with a discharge characterization of Other Than Honorable.”

021115:	GCMCA, Commander, Amphibious Group TWO authorizes the Applicant's discharge 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 20021203 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).  

In the Applicant’s issue, 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 service was marred by 2 nonjudicial punishment proceedings for violations of Articles 86, 92 and 112a of the UCMJ.  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 and 112a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  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 and falls far short of that required for an upgrade of his characterization of service.  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 following is provided for the edification of the Applicant.  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 several letters of recommendation from family, friends and co-workers as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.

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