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

FOR OFFICIAL USE ONLY

ex-QM2, USN
Docket No. ND06-00272

Applicant’s Request

The application for discharge review was received on 20051129.  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 20061019.  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:

“1.  My discharge was not proper because my command waited too long after my conviction before discharging me.  (awauth) [A61.10](5 month’s)
2.  My discharge was based solely on drug-related conduct. (aswauth)[A85.04]

3.  My discharge was based solely on drug use or possession. (aswauth) [A85.04]

4.  My drug use only involved a small amount (simple possession) (aswauth [A94.30] 1/2 gram/METH

5.  Aside from the drugs, my record was satisfactory. (aswauth) [A85.08]

6.  I was never involved in selling or trafficking of drugs. (awauth) [A94.36]

7.  The Commanding Officer never took in consideration of the 18 years of naval service already completed.

8.  The Commanding Officer didnt consider all of the accomplishments and sacrifices that I made for the Navy and my country.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“I feel that my discharge was too severe compared with what most other people wound get for the same offense.  I also feel that the command abused its authority when it decided to discharge me.  And give me a bad discharge.  Due to that fact that I was allowed to remain active duty 3 month’s after my 45 days of base restriction.  To live offbase, take leave, etc before the message arrived from NAVPER’S Mar05 2005 to discharge me.  Its strange to me how Capt K_ H. D_ who was in command of Fleet Activities Yokosuka who also handed my NJP charge Oct 13 2004 in fact was relieved by Capt G_ J. C_ late Feb 2005.  Is’nt Capt D_ the only person who should sign for my discharge?  Because I was active duty under Capt C_ until 12 Mar 2005.  I have inclosed two base newspaper clippings photo’s of both Capt D_ and Capt C_ that shows their time frames of Commanding Officer.  With that said.  I also want to bring to the boards attention the unperfetionalism handling of my seperation from Fleet Activities Yokosuka.  First after the message arrived 05 Mar 2005 from NAVPERS the command panic.  Told me that I only had one week to get my house hold goods packed, family moved, car sold because I needed to be in San Diego by a 10 day deadline.  I recevied word of this message 17:00 Fri afternoon 05 Mar 2005.  Housing office was not open Sat-Sun.  The following Monday housing cound not do a packout on me with a 3 day notice.  Which left me to rent a truck and move myself at my cost.  I was able to find other place to move my family here in Japan and get most of the house hold goods moved out.  But *NOTE* that the house I was renting was never cleared by housing or the Japanese owner.  Nor bills paid, cleaned, etc.  And properly returned to the Japanese owner.  I just left to keys in mailbox.  I tryed to telling the cheif in charge at (CFAY C-2 Admin) who also worked under Capt D_ about this (YNC N_).  But his words was that their was nothing holding me back.  And it was way over his head.  I was pushed through medical and dental in one day as well.  And given my air ticket and all of my records 12 Mar 2005 with NO CHECK OUT SHEET AT ALL!!!! didnt even check out from the command.  I departed Japan 13 Mar 2005 for San Diego.  And discharged 21 Mar 2005.  The command (CFAY C-2 Admin) left a very big black mark on our flag to the Japanese community by allowing me to abandon their home without payment.  My total time in the Navy after discharge was 18years 10months 5day’s.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4)
Applicant’s previous enlistment DD Form 214 (Service 7)
Seven pages from Applicant’s service record
Certificate of Commendation from Commander in Chief, United States Pacific Command, for outstanding professional achievement, dtd November 23, 1999
Navy and Marine Corps Achievement Medal Certificate for professional achievement, dtd March 29, 1999
Letter of Commendation from Commander, Carrier Group Five, Carrier Strike Force Seventh Fleet/Commander, Battle Force Seventh Fleet, for outstanding performance on May 5, 1999
Letter of Commendation from Commander, Carrier Group Five, Carrier Strike Force Seventh Fleet/Commander, Battle Force Seventh Fleet, for outstanding performance from October 1998 to July 2000
Letter of Commendation from Commander, Task Force SEVEN TWO, Patrol and Reconnaissance Force Seventh Fleet/Patrol Wing 1, dtd October 16, 1995
Character Reference ltr from S_ M, friend, undtd
Character Reference ltr from E_ J. M_, Applicant’s wife, dtd November 24, 2005
Character Reference ltr from K_ M_, friend, dtd November 24, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19860516 - 19860819	COG
	Active:   USN	19860820 - 19890629	HON
		USN	19890630 - 19920909	HON
		USN	19920910 - 19951021	HON
		USN	19951022 - 20010131	HON

Period of Service Under Review:

Date of Enlistment:  20010201		Date of Discharge:  20050321

Length of Service (years, months, days):

	Active:    04  01  21
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  33

Years Contracted:  4 (10-month extension)

Education Level:  12				AFQT:  25

Highest Rate:  QM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)			Behavior:  1.7 (3)		OTA:  2.54

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal(2), Southwest Asia Service Medal(3), Kuwait Liberation Medal, Navy Unit Commendation, Combat Action Ribbon, Overseas Service Ribbon(8), Good Conduct Medal(4), Armed Forces Expeditionary Medal(2), Meritorious Unit Commendation, Navy “E” Ribbon(2), Navy and Marine Corps Achievement Medal, Humanitarian Service Medal, Sea Service Deployment Ribbon(5), Global War on Terrorism 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: 

010201:	Applicant reenlists this date for a term of 4 years.

020919:	Applicant voluntarily extends enlistment by 10 months with new contract expiration date of 051130.

030801:	Retention Warning:  Advised of deficiency in performance and/or conduct (Involvement in a domestic dispute).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued disciplinary and discharge warnings.

041006:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040930, tested positive for methamphetamine.

041013:	NJP for violation of UCMJ, Article 112a: (Wrongful use, possession, etc., of controlled substances)
	Specification: In that Quartermaster First Class D_ R. M_ (Applicant), U.S. Navy, Commander, Fleet Activities, Yokosuka, Japan, on active duty, did, at or near Yokosuka, Japan, on or about 040930, wrongfully use methamphetamine, a schedule II controlled substance.
	Award:  Forfeiture of $1183.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5.  No indication of appeal in the record.

041018:	Applicant notified of intended recommendation for discharge by reason of misconduct - commission of a serious offense and misconduct - drug abuse with the least favorable characterization of service as under other than honorable conditions.

041018:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

041019*:	Commander, Fleet Activities, Yokosuka, Japan, recommended discharge under other than honorable conditions by reason of misconduct - drug abuse and misconduct - commission of a serious offense.  Commanding Officer’s comments:  “After reviewing enclosure (1) through (3), I strongly recommend QM2 M_(Applicant) be separated from the Naval Service with a characterization of service of Other Than Honorable.  QM2 M_’s misconduct clearly demonstrates he has no potential for further service and runs afoul of the Navy’s Core Values.”  Indicates that he has directed that Applicant be separated “as soon as practicable, after his return to the United States.”
	[*Date of recommendation extracted from Conduct and Separations Branch (PERS-483) Action Memo dtd 041203.]

041116:	Commander, Naval Personnel Command, via message 161101Z NOV 04, advises Commander, Fleet Activities, Yokosuka, Japan, that Chief of Naval Personnel is discharge authority for involuntary separation of active duty members with 18 or more years total active military service, and directs that Applicant not be transferred until proper authorization has been received.

041203:	Conduct and Separations Branch (PERS-483) recommends that Chief of Naval Personnel authorize Applicant’s discharge by reason of misconduct due to drug abuse and that characterization of service be under other than honorable conditions.

050303:	Chief of Naval Personnel directs that Applicant be discharged no later than 10 days of receipt of discharge message (031500Z MAR 05) under other than honorable conditions by reason of misconduct due to drug abuse.

050308:	Applicant found physically fit for separation.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050321 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 issues numbered 2 through 6, in which the Applicant essentially implies that his offense was not serious enough to warrant discharge, the Board found there is credible evidence in the record that the Applicant used illegal drugs, a violation of Article 112a of the Uniform Code of Military Justice.  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 NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violation of Article 112a is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial.  In addition, the Applicant’s service was marred by a retention warning for his involvement in a domestic dispute.   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.

In the Applicant’s issue numbered 1, the Board found no impropriety or inequity in the time involved in processing his administrative separation.  The record demonstrates that the Applicant’s local command moved expeditiously to address his illegal drug use and, once it was substantiated during nonjudicial punishment proceedings, to carry out mandatory separation proceedings.  Because the Applicant had more than 18 years of active service, his command was not authorized to discharge him locally; that decision remained with the Chief of Naval Personnel.  The Board concluded that the most likely reason for the length of time the Applicant complains of was the careful review and consideration his case received in light of his previous lengthy service.  Relief on this basis is not warranted.

In the Applicant’s issues numbered 7 and 8, the Board found no inequity in the characterization of Applicant’s service.  As noted above, separation for drug abuse generally results in characterization of service under other than honorable conditions.  The record demonstrates that the Applicant had every opportunity to contest the allegation of illegal drug use, and to contest the proposed separation.  The Applicant chose to waive his administrative separation rights rather than contest the separation.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  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), 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.  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