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NAVY | DRB | 2005_Navy | ND0500902
Original file (ND0500902.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-GMSN, USN
Docket No. ND05-00902

Applicant’s Request
The application for discharge review was received on 20050502. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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 and reason for 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

 Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident in South America. I feel I served my punishment by serving 3 days of bread and water, forfeiting 2 half months pay, dropping a pay grade, and receiving an other than honorable conditions discharge, but the worst punishment was the embassment I caused to my family, friends, shipmates, and to myself. I now have to live with this one mistake for the rest of my life and all I’m asking for is to please consider changing my discharge. Thank you for your time and consideration.

G_ T. M_ Jr. (Applicant)”

 Documentation
Only the service record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20001118 – 20010820      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20010821             Date of Discharge: 20031218

 Length of Service (years, months, days):

         Active: 02 03 28 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    1 day
         Confinement:                       3 days

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 48

 Highest Rate: GMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)                      Behavior: 2.50 (2)                OTA: 2.25

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Navy Pistol Marksmanship Ribbon


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

020806:  NJP for violation of UCMJ, Article 92:
         Specification: Dereliction in the performance of duties.
         Award: Forfeiture of $644 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

 030808:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030805, tested positive for cocaine.

 030812:  NJP for violation of UCMJ, Article 112a:
         Specification: Wrongful use of cocaine, a scheduled II controlled substance.
         Award: Forfeiture of $675 per month for 2 months, bread and water for 3 days, reduction to E-2. No indication of appeal in the record.

030812:  Applicant found to be drug dependent and declined Level III treatment.

030821:  Applicant arrested for DUI by Virginia Beach Police Department with a BAC .08%.

 031021:  Civil Conviction: Commonwealth of Virginia,Virginia Beach General District Court for violation of DUI on 030821.
 Sentence: Fine $350.00, court cost $179.00, jail for 30 days, restricted drivers license for 12 months. Jail suspended.
031021:  NAVPERS 1070/613 Administrative Remarks [Extracted from Commanding Officer’s letter dated 031024.] No further information found in service record.

 031022:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense, and misconduct due to civilian conviction. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
031022:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
031024:  Commanding Officer, Transient Personnel Unit, Norfolk, VA, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense, and misconduct due to civilian conviction. Commanding Officer’s comments: “GMSA M_ (Applicant) reported to Transient Personnel Unit, Norfolk on 15 August 2003 awaiting administrative separations processing from USS STUMP (DD 978). On 21 August 2003, he was arrested and charged with Driving Under the Influence (DUI). On 3 August 2003, he tested positive for cocaine while on board USS STUMP (DD 978). His drug use is a clear violation of the Navy’s “zero tolerance” drug policy. He has demonstrated a lack of maturity and total disregard for Navy Regulations. GMSA M_ (Applicant)’s total lack of commitment is unacceptable and not conducive to good order and discipline. Accordingly I emphatically recommend him for immediate separation from the Navy under Other than Honorable conditions.”

031029:  Commander, Navy Region, Mid-Atlantic, 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 20031218 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 Applicant contends that his discharge is inequitable because it is based on a single isolated incident in 79 months of total service. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. 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. T he Applicant’s service was marred by civilian convictions for driving under the influence of alcohol, dereliction of duty, and illegal drug use. This misconduct resulted in two nonjudicial punishment proceedings for violations of UCMJ Articles 92 and 112a. 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 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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