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NAVY | DRB | 2004_Navy | ND04-00086
Original file (ND04-00086.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00086

Applicant’s Request
The application for discharge review was received on 20031017. The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000315 - 000328  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000329               Date of Discharge: 020920

 Length of Service (years, months, days):

         Active: 02 05 22         Does not exclude lost time
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

 Education Level: 10                        AFQT: 54

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.84

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, NDSM, AFEM, SSDR

 Days of Unauthorized Absence: 49

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

020510:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020506, tested positive for cocaine.
020628:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 020506 to 020618 (49 days/surrendered).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $736.00, confinement for 30 days, reduction to SR.
         CA action 020705: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $000.00 which is suspended for 3 months.

020628:  Applicant found fit for confinement.

020628:  Applicant to confinement.

020718:  Applicant from confinement and returned to full duty.

020727:  Retention Warning: Advised of deficiency (Summary court-martial held on 020628 for the conviction of VUCMJ, Article 86, Unauthorized absence from 020508 to 020618. Adjudged: to be confined for 30 days, forfeit $736.00 pay per month for one month and to be reduced in rate to E-1.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 020821:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 020424.
         Award: Forfeiture of $577 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
020821:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct as evidenced by your punishment under the Uniform Code of Military Justice during your current enlistment and misconduct due to drug abuse as evidenced by your Commanding Officer’s nonjudicial punishment on 020821 for violation of the Uniform Code of Military Justice Article 112a, wrongful use of cocaine on 020424.
020821:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
020826:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse (use) as evidenced by his punishments under the UCMJ.

020903:  COMCRUDESGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020920 under other than honorable conditions for misconduct due to drug abuse (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 introduced no decisional issues for consideration by the Board.

 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.

When the service of a member of 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 a Summary Court-Martial conviction for 49 days unauthorized absence and nonjudicial punishment proceedings for a violation of Article 112a for use of cocaine. 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 other evidence related to his discharge at that time. 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 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 " afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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