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NAVY | DRB | 2004_Navy | ND04-01369
Original file (ND04-01369.rtf) Auto-classification: Denied


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

ex-MS3, USN
Docket No. ND04-01369

Applicant’s Request
The application for discharge review was received on 20040901. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Dear Sir/Mam,

I believed that the military discharge I received was improper, because during my military tour of duty, I have always been honest with my fellow sailors, I faithfully served our God and the U.S. Government, and I obeyed the order of the officer appointed over me. In addition to this, I have awarded 4 good conduct awards.

Please review my medical records that I attached in consideration of my upgrade.

To conclude this please kindly change to Honorable or Medical discharge. Thank you very much.

P.S. The incident occur when I mistakenly took the pill I thought would alleviate the tension of my migraine headache.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Certificate of Honorable Discharge, 29 Nov 1999
Copy of Certificate of Honorable Discharge, 30 Jun 1994
Copy of Fourth Good Conduct Award (2 copies)
Copy of Second Good Conduct Award (2 copies)
Medical Record Documents (126 pages)
Copy of DD Form 214
Copy of DD Form 215
Letter of Commendation
Flag Letter of Commendation
Letter of Commendation
Letter of Appreciation, dated 19 Aug 1997
Letter of Appreciation, dated 09 May 1994
Copy of Meritorious Unit Commendation
Letter of Appreciation, dated 16 Aug 1999
Letter of Commendation
Food Service Achiever Award
Selection as Mess Management Specialist of the Month
Letter of Appreciation, dated 15 Dec 1992
Enlisted Performance Evaluations (22 pages)
Enlisted Performance Record
History of Assignments (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880429 - 880516  COG
         Active: USN                        880517 - 940630  HON
                                             940701 - 950516*         HON
 950517*- 991129  HON
*Cannot be verified, contract not in service record

 Period of Service Under Review :
Date of Enlistment: 991130               Date of Discharge: 030512

 Length of Service (years, months, days):

         Active: 03 05 13
         Inactive: None

 Age at Entry: 42                          Years Contracted: 4

 Education Level: 15                        AFQT: 27

 Highest Rate: MS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)    Behavior: 4.00 (3)                OTA: 3.66

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (4), AFEM (2), NDSM (2), NUC, SSDR (3), SWAS, OSR (2), MUC, NER, Flag LoC

 Days of Unauthorized Absence: None

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

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


Chronological Listing of Significant Service Events :

021008:  NAVDRUGLAB San Diego, CA, reported Applicant’s urine sample, received on 021004, tested positive for MDA and MDMA..
021125:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $876.00 pay per month for 2 months (suspended for 6 months), restriction for 60 days, reduction to E-4. No indication of appeal in the record.
021127:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse.
021127:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected all rights including the right to appear before an Administrative Discharge Board.
030221:  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 the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge with a general (under honorable conditions).

030424:  Commanding Officer directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030530:  Commanding Officer recommended discharge with a general by reason of misconduct due to drug abuse.

030609:  CNMPC directed forwarding of missing documents for inclusion into Applicant’s permanent record and issuance of DD Form 215 to reflect correct SPD code for Applicant’s discharge.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030512 with a general (under honorable conditions) for misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. There is credible evidence in the record that the Applicant used illegal drugs. During his administrative discharge board, the Applicant did not contest the issue of his illegal drug use. He admitted to his misconduct by ingesting an unknown substance from a person who had previously offered him the illegal drug “X” or ecstasy. The day after he ingested the substance, the Applicant’s urine sample was collected and eventually tested positive for the illegal substances MDA and MDMA. Mandatory processing for separation is required for sailors who abuse illegal drugs. While separation under these conditions generally results in characterization of service under other than honorable conditions, the Applicant’s outstanding service record and prior good conduct resulted in him receiving a general discharge. 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. There is nothing surrounding the Applicant’s separation processing or characterization of service that is either improper or inequitable. Relief denied.

The Applicant contends that he served the United States well and he is entitled to an upgrade. 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. A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 112a of the UCMJ for admitted drug use. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant desires a change in his Narrative Reason for Separation to “medical discharge”. The summary of service clearly documents that misconduct due to drug abuse was the reason the applicant was processed and ultimately discharged. No other Narrative Reason for Separation more clearly describes why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief based on this issue 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. 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 Present, Article 1910-146 (formerly 3630620), 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 .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.


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


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