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NAVY | DRB | 2005_Navy | ND0500722
Original file (ND0500722.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SR, USNR
Docket No. ND05-00722

Applicant’s Request
The application for discharge review was received on 20050322. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050811. 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:

“Naval Council of Personnel Boards,

On 17 November 2000 I went to Commanding Officer’s Nonjudicial Punishment. The charges that I received were not right with what really happened. Under article 92, failure to obey a lawful general regulation, is correct I was in the wrong place at the wrong time. Under Article 112a, wrongful use of a controlled substance was unfounded. Upon my drug test with the Navy I did not test positive for a controlled substance. When I was stationed in San Diego onboard the USS Kinkaid (DD 965), I went to Mexico with three of my fellow shipmates. The three sailors that were there with me did use a controlled substance. I understand the Navy’s Core Values; HONOR, COURAGE and COMMITMENT and I did not follow through on them. I did not have the HONOR to tell my chain of command about those shipmates that were using a controlled substance. I did not have the COURAGE to tell on them either being afraid of what my peer would thing of me, if I told the chain of command. I do however have the COMMITMENT to serve my Country and the Navy if given a second chance. I have always wanted to serve my country and I think I would make a great fit for the Navy’s lifestyles. I am five years older and wiser. I never nor would I ever use illegal drugs, I just want to get back into the Navy to finish serving my country.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Commanding Officer’s recommendation for administrative separation, dated December 1, 2000 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000428               Date of Discharge: 001222

 Length of Service (years, months, days):

         Active: 00 05 10
         Inactive: 00 02 16

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                           Behavior: NA*             OTA: NA*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Not available

 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 :

000428:  Applicant’s written statement on previous use of drugs prior to enlistment, and acknowledged understanding of the Navy’s Zero tolerance policy.
000713:  Commenced to active duty for 2 years under the Seaman Apprentice Training Program.

001106:  Voluntary Statement given by Applicant.

001117:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful General regulation; violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $503.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
001121:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by CO’s NJP. Applicant notified the least favorable characterization of service possible is under other than honorable conditions.
001121:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

001201:  Commanding Officer, USS KINKAID, recommended to Commander, Naval Surface Force, U.S. Pacific Fleet, (COMNAVSURFPAC) that Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s NJP on November 17, 2000 and Statement of Witness.

001208:  COMNAVSURFPAC, San Diego, 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 20001222 under other than honorable conditions for misconduct due to drug abuse (A). 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).

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 contends her discharge was improper because she never used illegal drugs and never tested positive for drug use on a urinalysis. Despite the Applicant’s contentions, there is credible evidence in the record that the Applicant used illegal drugs. The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use and Article 92, failure to obey a lawful general regulation. The record also contains sworn statements from other servicemembers detailing the Applicant’s illicit drug use. There is no evidence in the record, nor has the Applicant provided any evidence, to support her contention that she did not use illegal drugs. The Applicant’s contentions alone are not enough to establish her innocence. Relief denied.

Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. 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. 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 27, effective 27 March 2000 - 11 Feb 2001, 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 .

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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