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Docket No. ND06-01053

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

FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-01053

Applicant’s Request

The application for discharge review was received on 20060808.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20070404.  The Applicant, with representation, and his spouse provided testimony.  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

Issues submitted by Applicant’s representative (American Legion):

“(Equity Issue)  The former member recognizes and regrets the mistakes that he made while serving in the Navy but believes that the positive aspects of his overall service record warrant a higher characterization of service than he was issued.

(Equity Issue)  This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Applicant’s DD Form 214 (Service 2) (2)
Applicant’s ltr, dtd July 10, 2006
Character Reference ltr from S_ E. F_, dtd October 11, 2006 (unsigned)
Character Reference ltr from B_ D. G_, undated
Applicant’s ltr to Mr. R_ S_, dtd March 30, 2007
Character Reference ltr from D_ A_-L_, dtd March 14, 2007 (2 pages)
Criminal records check, City of Claremore Police Department, dtd March 29, 2007 
Ltr from J_ G_, G_ L_ Mental Health Center, Inc., dtd March 29, 2007 
Professional Builder Certification for T_ E. T_ (Applicant’s spouse), Oklahoma State Home Builders Association, undated
Cherokee Nation TERO certification of B_ Contractors, LLC, dtd October 2, 2006.
Better Business Bureau certificate for B_ Contractors, LLC Excellence in Customer Service, 2006
Rogers County Builders Association “Builder Member in Good Standing” Certificate to T_ T_ (Applicant’s spouse) and B_ Contractors, LLC, for March 2006 – March 2007, dtd March 29, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19890322 - 19890501	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890502		Date of Discharge:  19920325

Length of Service (years, months, days):

	Active:    02  10  24  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  23 days
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4 

Education Level:  12				AFQT:  30

Highest Rate:  MM3 

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.7 (3)		Behavior:  2.9 (3) 			OTA:  3.27

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon (2^nd Award), Combat Action Ribbon, Navy Unit Commendation, Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal w/two Stars, Kuwait Liberation Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

890322:	Applicant certifies in writing Drug and Alcohol Abuse Statement of Understanding.

910201:	NJP for violation of UCMJ, Article 92: Wrongfully storing a bullet in his locker on or about 910124.
Award:  Forfeiture of $100.00 pay per month for 1 month.  No indication of appeal in the record.

910615:	CO’s NJP of 910201, punishment regarding forfeiture disallowed this date.  [The Board determined that “disallowed” meant “set aside.”]

920217:	Applicant to unauthorized absence at 0730.

920311:	Applicant from unauthorized absence at 1253 (23 days/surrendered).

920312:	NJP for violation of UCMJ, Article 112a: Wrongful use of methamphetamine on or about 920215.
Award:  Forfeiture of $400.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in record.   

920312:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Nonjudicial Punishment on 920312.

920312:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

920312:	Commanding Officer, USS MISSOURI, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment on 920312.  

920312:	Medical Entry:  USS MISSOURI Medical Department, LCDR B. C. M_, MC, USN:  Applicant not dependent on alcohol or drugs.  Drug use was recreational and can be controlled by Applicant. 

920319:	BUPERS directed the Applicant's under other than honorable conditions discharge by reason of misconduct (drug abuse) (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920325 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 Board presumed regularity in the conduct of governmental affairs (D).

Regarding the Applicant’s first issue, 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, and the Applicant testified to knowing, purposeful and continuous use of methamphetamine for a period of months, beginning while deployed in a war zone aboard a warship actively engaged in combat operations.   At the time of the Applicant’s initial use, processing for separation was mandatory for all officers and petty officers for the first instance of illegal drug use. The Applicant was promoted to Machinist’s Mate Third Class on 911216.  On 920301, processing for separation became mandatory for all Sailors who abused illegal drugs, regardless of rank and rate.  The Applicant’s illegal drug use was identified upon his return from a period of unauthorized absence on 920311.  The Applicant was properly processed for separation for his illegal drug use.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Board determined that the Applicant’s record of service was not so otherwise meritorious that his characterization of service was unwarranted.  The Applicant’s contention that other Sailors, including some senior to him, also used illegal drugs did not excuse or mitigate his own use, or his failure to inform appropriate authorities of others’ use when it first came to his attention.  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 for which punitive discharge is authorized if adjudged at a special or general court-martial.  Relief based on the Applicant’s overall service record is not warranted.

Regarding the Applicant’s second issue as it pertains to post-service conduct, 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 some character reference letters, and testimonial and documentary evidence regarding his post-service employment, drug rehabilitation treatment and subsequent sobriety, lack of criminal record, community service, and family life.   After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was insufficient to mitigate the misconduct which precipitated the discharge.  Therefore, no relief will be granted.  

The Applicant has exhausted his opportunities for review by the NDRB.    The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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