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Docket No. ND06-00612

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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00612

Applicant’s Request

The application for discharge review was received on 20060404.  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 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

The NDRB did note administrative errors on the original DD Form 214.  Normally, the NDRB will notify the Commander, Navy Personnel Command, recommending the DD Form 214 be corrected or reissued, as appropriate.

However, it was noted that Commander, Navy Personnel Command, directed the Commanding Officer, Helicopter Anti-Submarine Squadron TWO via message DTG 270802Z JUN02 to issue a DD Form 215 to reflect corrections to the already issued DD Form 214.  Therefore, the NDRB will not take any action regarding the errors noted.

 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I regret my actions and apologize for my misuse of drugs in the military.  I have realized how this has affected my life since my discharge.  I now have a family and would love more than anything to be a better provider for them.

I have been persueing a career in law enforcement since my discharge but have come to a dead end when I apply for Certified Peace Officer positions.  One other reason why I am requesting this review of discharge is because I have realized how much drugs can affect people’s lives and I want help out others with their problems. I never would have thought that me not saying “no” to drugs would affect the jobs I want to get and the rest of my life”

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

“I am asking and pleading with your Department to please consider me for this.  I also have been speaking to my local Army National Guard unit about possibly starting a career in military law enforcement.  I believe in our nations cause in Iraq and would really consider being apart of that also.”

Documentation

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

Applicant’s DD Form 214 (Service 2) (3)
Fifty-two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991023 - 20000229	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000301		Date of Discharge:  20020423

Length of Service (years, months, days):

	Active:    02  01  23
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (12-month extension)

Education Level:  9 GED			AFQT:  35

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

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

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

011121:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Specification: In that Airman Apprentice J_ A. E_(Applicant), United States Navy, absent himself from his appointed place of duty from 0900 until 1245 at which he was required to be, to wit: HS-2 Line Shack.
	Violation of the UCMJ, Article 134: Debt, dishonorably failing to pay just debt.  Specification: In that Airman Apprentice J_ A. E_, United States being indebted to “The Finance Company” in the sum of $3,626.10 for an auto loan, which amount became due and payable on or about 010919, did from 001230 to present, dishonorably fail to pay said debt.
	Violation of the UCMJ, Article 92: Failure to obey order or regulation
	Specification: In that Airman Apprentice J_ A. E_, United States Navy, having knowledge of a lawful order issued by AEC(AW) D_ and ADC(AW) H_ to maintain an allotment to “The Finance Company” for his auto loan an order which it was his duty to obey, did onboard USS CONSTELLATION (CV 64) on or about 010622, fail to obey the same by cancelling the allotment.
	Violation of the UCMJ, Article 108: Military property of the United States, sale, loss, damage, destruction, or wrongful disposition.
	Specification: In that Airman Apprentice J_ A. E_, United States Navy, on active duty, did, at the Bachelor Enlisted Housing (BEH) onboard Naval Air Station, North Island, on or about 011020, without proper authority; damage a BEH door by kicking it until it came open.
	Violation of the UCMJ, Article 80: Attempts.
	Specification: In that Airman Apprentice J_ A. E_, United States Navy, on active duty, did, at the Bachelor Enlisted Housing (BEH), on or about 011020, attempt to steal food from the room of AMAN F_ and AN C_.
	Award:  Restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

011121:	Retention Warning:  Advised of deficiency (Negligence in the performance of duties as evidenced by CO’s NJP on 011121.  Applicant was found guilty of UCMJ Art. 80, Attempts, UCMJ Art. 86, Absence without leave, UCMJ Art. 92, Failure to obey order or regulation, UCMJ Art 108, Military property of the United States sale, loss, damage, destruction, or wrongful disposition, and UCMJ Art. 134, Debt, dishonorably failing to pay.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020308:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020301, tested positive for amphetamine, methamphetamine and THC.

020314:	Restriction and extra duty for 45 days and reduction in pay grade awarded at NJP on 011121 vacated due to continued misconduct.

020315:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substances.
	Specification: In that Airman Apprentice J_ A. E_ (Applicant), United States Navy, Helicopter Anti-Submarine Squadron TWO, on active duty, did, while assigned to Helicopter Anti-Submarine Squadron TWO, test positive on or about 010301, for wrongful use of marijuana, methamphetamines and amphetamines, a Schedule I controlled substance.
	Award:  Forfeiture of $552.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

020411:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct - drug abuse, misconduct - pattern of misconduct and misconduct - commission of a serious offense.

020411:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

020412:	Commanding Officer, Helicopter Anti-Submarine Squadron TWO, recommended discharge under other than honorable conditions by reason of misconduct - drug abuse and misconduct - pattern of misconduct and misconduct - commission of a serious offense.  Commanding Officer’s comments:  “Mandatory processing in this case was commenced as required by references (a) and (b).  Airman Recruit E_(Applicant) was notified that administrative separation processing would be initiated, whereupon he elected to waive his rights to an Administrative Board.
	Airman Recruit E_’s misconduct clearly indicates his unwillingness to adhere to the Navy and command’s zero tolerance drug abuse policy.  Conduct such as his is prejudicial to good order and discipline, and greatly hinders the mission accomplishment and morale of the entire command.  I recommend he be separated from the naval service with an Other Than Honorable discharge.”

020415:	Commander, Cruiser-Destroyer Group ONE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

020627:	CNPC directed HELANTISUBRON TWO to issue DD Form 215 reflecting the following: Block 25: MILPERSMAN 1910-140, Block 26: HKA, and Block 28: PATTERN OF MISCONDUCT.  DD Form 215 not found in service record.

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 20020423 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).  

The Applicant states “I regret my actions and apologize for my misuse of drugs in the military.  I have realized how this has affected my life since my discharge.  I now have a family and would love more than anything to be a better provider for them.”  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by one retention warning, 2 nonjudicial punishment proceedings for violations of Articles 80 (Attempts), 92 (Failure to obey order or regulation), 108 (Sale, loss, damage, destruction, or wrongful disposition of), 112a (wrongful use, possession, etc. of controlled substances) and 134 (Debt, dishonorably failing to pay) of the UCMJ.  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.  Relief 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 80 (Attempts), 92 (Failure to obey order or regulation), 108 (Sale, loss, damage, destruction, or wrongful disposition of), 112a (wrongful use, possession, etc. of controlled substances) and 134 Debt, dishonorably failing to pay) of the UCMJ.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  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