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Docket No. ND06-00596

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

FOR OFFICIAL USE ONLY

ex-IT3, USN
Docket No. ND06-00596

Applicant’s Request

The application for discharge review was received on 20060322.  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 20070110.  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 General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Net Active Service This Period, should read:  “04  06  25.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Positives outweigh negatives.

This was the only time I had been in trouble.  I was doing everything possible to be a outstanding sailor & a model.”

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

“I am very sorry for what I did.  I really hope that my discharge can be upgraded based on my evals.  I would really like to use my G.I. Bill for going to school.  Thank you for taking the time to look over my files.”

Documentation

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

Applicant’s DD Form 214 (Member - 4)
Evaluation Report and Counseling Record for period March 16, 2004 to May 18, 2005
Evaluation Report and Counseling Record for period March 15, 2003 to March 15, 2004
Evaluation Report and Counseling Record for period October 5, 2002 to April 19, 2003
Evaluation Report and Counseling Record for period June 13, 2002 to October 4, 2002
Evaluation Report and Counseling Record for period July 16, 2001 to June 12, 2002
Evaluation Report and Counseling Record for period April 18, 2001 to July 15, 2001
U_ E_ Institute Progress Report, dtd February 27, 2006 (4 pages)
U_ E_ Institute Perfect Attendance Award for period December 15, 2005 – January 20, 2006, dtd January 20, 2006
U_ E_ Institute Honor Student Award for Module December 15, 2005 – January 20, 2006, dtd January 20, 2006
Letter from Applicant, dtd March 6, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000128 - 20001023	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001024		Date of Discharge:  20050518

Length of Service (years, months, days):

	Active:    04  06  25
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (19-month extension)

Education Level:  12				AFQT:  54

Highest Rate:  IT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (6)		Behavior:  3.5 (6)		OTA:  3.43

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214)*:  Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Enlisted Surface Warfare Specialist

*The Board noted that the Applicant’s service record also contained a Navy and Marine Corps Achievement Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT (DRUG ABUSE), authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

050309:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 050304, tested positive for amphetamine and methamphetamine.

050311:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful order
	Specification: In that IT2 K_ N_ (Applicant), U.S. Navy, USS CHAFEE (DDG 90), on active duty, did on board USS CHAFEE (DDG90) on or about 050305, having knowledge of a lawful order issued by CDR J. M. C_ in CHAFEEINST 1000.1 stating the policy on drug use is zero tolerance, an order which was it was her duty to obey, did on or about 050305 fail to obey the same by wrongfully using illegal drugs.
Violation of UCMJ, Article 112a: Wrongful use of controlled substance.
Specification: In that IT2 K_ N_ (Applicant), U.S. Navy, USS CHAFEE (DDG 90), on active duty, did on board USS CHAFEE (DDG 90) on or about 050305, wrongfully use schedule IV controlled substance while on board USS CHAFEE (DDG 90) to wit: methamphetamine and amphetamine.
	Award:  Forfeiture of $1078.85 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

050408:	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.

050408:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

050511:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

050518:	Applicant, via counsel, submits Letter of Deficiency on the grounds that the Administrative Discharge Board improperly weighed hearsay testimony concerning the addictive effects of amphetamines and methamphetamines, and failed to properly weigh the Applicant’s overall good service record.

050520:	Commanding Officer, USS CHAFEE (DDG 90), directed that the Applicant be discharged with a general (under honorable conditions) characterization of service by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Enclosure (3), the Letter of Deficiency was reviewed and taken into consideration.  Although IT3 N_ (Applicant) admits that the drug use was a one-time event due to outside stressors, drug use will not be condoned or tolerated.  IT3 N_ has shown an inability to live within the boundaries of the regulations, which govern members of the military.  This inability to cope with military life renders her with no further potential for productive naval service.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050518 by reason of misconduct due to drug abuse (A) with a service characterization of general (under 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).  

There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant states that “this was the only time I had been in trouble.”  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.  Violations of Article 112a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  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.  Separation under these conditions generally results in characterization of service under other than honorable conditions; however, the Applicant received a general discharge.  The Board could discern no impropriety or inequity and therefore considers her discharge proper and equitable.  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.  In addition to evidence of educational pursuits, examples of documentation that should be provided to the Board include verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

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 of the propriety and equity of the discharge.  

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), Change 11, effective 
29 April 2005 until Present, Article 1910-146, 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