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NAVY | DRB | 2004_Navy | ND04-01374
Original file (ND04-01374.rtf) Auto-classification: Denied


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


ex-ABEAA, USN
Docket No. ND04-01374

Applicant’s Request
The application for discharge review was received on 20040902. 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: UNDER OTHER THAN 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. “I feel that my status should be upgraded, due to the fact that my discharge was based solely on a urinalysis that was a 9 month to a year old. All other urinalysis after that time returned with a negative result. In addition this was my only offense in the 3 years and 2 months of service. I have no other disciplinary actions against myself. Furthermore, during my service time I have repeatedly meet the necessary qualifications needed to advance in pay grade. Moreover I feel that the punishment of me being reduced in rank from an E-4 to E-2 along with a decrease in salary and restriction with extra duty time was sufficient punishment for this one time lack of judgment. I pray that my service record will outweigh this lack in judgment. Thank you for your time.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000531 - 000608  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 000609               Date of Discharge: 030819

 Length of Service (years, months, days):
         Active: 03 02 11
         Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 51
Highest Rate: ABE3 (frocked)

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.50 (2)    Behavior: 4.00 (2)                OTA: 3.48

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, AFEM, NUC, MUC, NDSM
Days of Unauthorized Absence: None

 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 :

020628:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020626, tested positive for THC.
030403:  Memorandum from Assistant Security Officer, USS ENTERPRISE CVN-65 to Legal Officer concerning results of urinalysis screening reported message dated 020628.
 030403:  Applicant signed military suspect’s acknowledgement and waiver of rights. Applicant desired to remain silent at that time.
030416:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 020609.
         Award: Forfeiture of $682 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Restriction and extra duty suspended for 20 days, forfeiture suspended for 6 months. Appealed 030417. Appeal denied 030515.
030512:  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.
030512:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030602:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030609:  COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030819 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).
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. The Applicant desires relief because his positive urinalysis occurred nearly a year prior to his separation and because nonjudicial punishment (NJP) alone was suitable punishment for his misconduct. Contrary to the Applicant’s contentions, a yearlong delay in the processing of his separation does not run afoul of Naval regulations. As such, there is nothing improper or inequitable in the command’s delay in the administrative processing of the Applicant’s discharge. Likewise, there is nothing improper or inequitable regarding the Applicant being punished at NJP and then processed for administrative separation. Administrative processing is not punitive in nature and is mandatory in cases of substantiated drug abuse. 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 nonjudicial punishment proceedings for a violation of Article 112a of the UCMJ for wrongful use of a controlled substance. 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 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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