Author: CAP
Last saved by: joseph.curtis
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Docket No. ND06-00727

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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00727

Applicant’s Request

The application for discharge review was received on 20060509.  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 20070216.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  “02  JUL  17,” Block 12c, Net Active Service This Period, should read:  02  04  01,” Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS,” and Block 29, Dates of Time Lost During This Period, should read:  “TL:  04NOV03 TO 04DEC15.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Family situation

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Certificate of Training of ORM Fundamentals, dated December 27, 2002
Course and School Completion record (not dated)
Certificate of Completion of The AAA Driver Improvement Program, date February 4, 2003
Nineteen pages from Applicant’s service record
Applicant’s driver’s license

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020328 - 20020716	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020717		Date of Discharge:  20050217

Length of Service (years, months, days):

	Active:    02  05  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  42 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  37

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):  National Defense Service Medal

* Not Available

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: 

040520:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Specification: Did on or about 0630, 040318, without authority, fail to go at the time prescribed to his appointed place of duty.
	Award:  Forfeiture of half of 1 months pay per month for 2 months, restriction for 14 days, reduction to E-2.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

040520:	Retention Warning:  Advised of deficiency (Violation of Art 86 of UCMJ-Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040603:	Retention Warning:  Advised of deficiency (Failure to meet body composition assessment standards.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

041102:	Forfeiture of pay and reduction in pay grade awarded at NJP on 040520 vacated due to continued misconduct.

041109:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 041104, tested positive for THC.

041220:	NJP for violation of UCMJ, Article 86 (2 specs): Absence without leave.
	Specification 1: Did on or about 2300, hours 041011, without authority, absent himself from his organization and did remain so absent until on or about 041012.
	Specification 2: Did on or about 0630, 041103, without authority, absent himself from his organization and did remain so absent until 041215.
Violation of UCMJ, Article 112a: Wrongful use, possession, etc., of controlled substance.
Specification: Did on or about 041104, wrongfully use marijuana.
	Award:  Forfeiture of $596.70 per month for 2 months, restriction for 60 days, reduction to E-1.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

041220:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct due to commission of a serious offense, pattern of misconduct and drug abuse.

041220:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050201:	Commanding Officer, Helicopter Combat Support Squadron TWO recommended discharge under other than honorable conditions by reason of misconduct - pattern of misconduct; misconduct - commission of a serious offense; and misconduct - drug abuse.

050213:	COMNAVAIRLANT Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

	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 20050217 by reason of misconduct due to drug abuse (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).  

Equity – Family situation:  The Applicant contends that his family situation affected his ability to serve.

While the Applicant may feel that his marital problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 2 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence, 3 specs) and 112a (wrongful use, possession, etc., of a controlled substance) of the UCMJ.  Violations of UCMJ Article 86 (UA for more than 30 days) and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by 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.  Relief is not warranted.

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 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.
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.  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 86 (unauthorized absence more than 30 days) and 112a (wrongful use, possession, etc., of a controlled substance).

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 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