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Docket No. ND06-00491

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

FOR OFFICIAL USE ONLY

ex-AKAN, USNR
Docket No. ND06-00491

Applicant’s Request

The application for discharge review was received on 20060215.  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 20061130.  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: 

“My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action.  It happens after being oversea in the Persian Golf for more than 4 months.  Just party a little too hard and I paid for my mistakes.”

Documentation

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

Applicant’s DD Form 214 (Member 4)
102 pages from Applicant’s service record
Dean’s List Award from Northwood University, undated
Certificate of Bachelor of Arts from Northwood University, dated 020331
Northwood University transcript, undated
Copy of inside cover and page 1 of Applicant’s passport, expiry 130611
Letter from D_ M_, Florida Council on Crime and Delinquency, dated 030607
Letter from T_ C_, ARAMARK Correctional Services, dated 040917
Letter from J_ N_, ARAMARK Corporation, dated 041007
Letter from R_ W_, Florida Restaurant Association, dated 000620
Letter from D_ K_, ARAMARK Corporation, dated 001120
Letter from C_ J_, Northwood University, dated 001211
Letter from V_ G_, ARAMARK Corporation, dated 001208
Letter from D_ M_, ARAMARK Corporation, dated 040308, unsigned
Letter from J_ M_, ARAMARK Corporation, dated 040308, unsigned
Certificate of Appreciation, dated 020619
Certificate of Appreciation, dated 021219
Certificate of Appreciation, dated 021214
Certificate of Appreciation, dated 021008
Certificate of Appreciation, dated 030404
Certificate of Appreciation, dated 011222
Certificate of Appreciation, dated 030607
Certificate of Completion, dated 030110
Certificate of Completion, dated 990429
Certificate of Completion, dated 000824
Certificate of Membership, dated 030607
Certificate of for Demonstrating Skills and Competences, dated 030613
Certificate of Thanks, undated
Document entitled “Special Management Meal Training Documentation,” dated 030616

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950113		Date of Discharge:  19970404

Length of Service (years, months, days):

	Active:    02  01  03  
	Inactive:  00  01  20

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  8

Education Level:  12				AFQT:  56

Highest Rate:  AK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)		Behavior:  3.0 (2)			OTA:  3.70 

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

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

950302:	Commenced active duty for a period of 36 months.

970221:	Drug and Alcohol Abuse Report: Cocaine abuse detected as a result of a unit sweep urinalysis, found not dependent or eligible for treatment, recommended for separation not via VA hospital. 

970225:	D_ S. P_, LT MC USNR (FS) NMC Portsmouth VA: PT denies cocaine use, no ETOH either, on no medication OTC or otherwise.  No evidence of substance abuse dependence cannot determine level of use, however, as pt continues to deny usage.  Proceed with administrative processing no treatment indicated at this time.

970304:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance, in that AKAN J_ V_ (Applicant), USN, VF-31, NAS Oceana, did in the vicinity of VA Beach, VA wrongfully use a controlled substance (cocaine).
Award:  Forfeiture of $505.00 pay per month for 2 months, restriction to NAS Oceana for 60 days, reduction to E-3.  No indication of appeal in the record.

970305:	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 as violation of UCMJ Article 112a, Wrongful Use of a Controlled Substance (Cocaine).

970306:	Applicant advised of rights, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970317:	FITRON THREE ONE recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “AKAN V_ (Applicant) has been an exemplary worker since joining this command, recently earning a command advancement promotion to Third Class Petty Officer.  Nevertheless, drug use is unacceptable.  This command fully supports the Navy’s “Zero Tolerance” Policy.  AKAN V_’s continued presence in this command is prejudicial to the good order to conduct of the naval service.  I strongly recommend a separation with an other than honorable characterization and an RE-4 reenlistment code.”

970319:	Applicant found physically qualified for separation.

970327:	GCMCA, COMCRUDESGRU 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 19970404 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 Applicant states his discharge was based on one isolated incident in “24 months.” 
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. 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 his conduct or that he should not be held accountable for his actions.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided extensive employment-related documentation in addition to documents relating to the Applicant’s educational endeavors 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 drug free existence, certification of non-involvement with civil authorities and documentation of community service efforts.  The Board determined that the documentation provided by the Applicant did not 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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