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NAVY | DRB | 2005_Navy | ND0500936
Original file (ND0500936.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00936

Applicant’s Request
The application for discharge review was received on 20050505. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. The NDRB advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915. 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 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 the result of an isolated incident that took place while I was under the influence of alcohol. I feel that had I received help for my drinking problem sooner, as my Command was well aware of my alcohol addiction, that the incident in question never would have taken place. The fact that I had been to numerous Disciplinary Review Boards and Captains Mast’s for alcohol related incidents, should have been more than adequate reason to send me to a rehabilitation center to receive the help that I so desperately needed at the time. Since my discharge from the Navy, I have quit drinking, gotten married and had a son. I feel that I am a different person than I was before and I would like to upgrade my discharge so that I may re-enlist and fulfill the obligation to my country and myself that I failed to fulfill in the past.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Cover letter from Applicant, dtd June 7, 2005
Character Reference ltr from J_ T. V_, Commander, USNR, dtd June 06, 2005 (2 pages)
Character Reference ltr from J_ M. L_, dtd June 7, 2005 (4 pages)
Letter stating change of address, dtd August 5, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Inactive: USNR (DEP)     20011207 – 20011217      ELS
Inactive: USNR (DEP)     20020125 – 20020305      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20020306             Date of Discharge: 20030318

 Length of Service (years, months, days):

         Active: 01 00 13                           [Does not exclude lost time]
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 5
         Confinement:              None

 Age at Entry: 21

 Years Contracted: 4

Education Level: 11                                 AFQT: 77

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0(1)                        Behavior: 1.0 (1)                 OTA: 1.67

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


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 :

020125:  Enlistment waiver granted for prior enlistment (entry-level separation for drug accession testing).

021003:  NJP for violation of UCMJ, Article 111 (2 Specs): Drunken operation of a vehicle, aircraft or vessel.
         Specification 1: In that SR J_ A. L_ (Applicant), USN, on active duty, did at or near Naval Station, San Diego, California, on or about 2 August 2002, near Post Fifteen, physically control a vehicle, to wit: a passenger car, while impaired by alcohol.
         Specification 2: In that SR J_ A. L_ (Applicant), USN, on active duty, did at or near Naval Station, North Island, San Diego, California, on or about 4 August 2002, near the Base Gate, physically control a vehicle, to wit: a passenger car, while the alcohol concentration in his blood was 0.08 grams of alcohol per 100 milliliters of blood or greater as shown by chemical analysis.
         Award: Restriction and extra duty for 31 days.

 021128:  Applicant in unauthorized absence 0600-0730. (1 hour and thirty minutes).

 021130:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Specification: Unauthorized absence 0600, 28 November 2002 to 0730, 28 November 2002.
 Award: Restriction and extra duty for 20 days. No indication of appeal in the record.
021201:  Retention Warning: Advised of deficiency (CO’s NJP of 3 October 2002 for VUCMJ Article 111 (Drunken Operation of a Vehicle) and CO’s NJP of 30 November 2002 for VUCMJ Article 86 (Absent Without Leave)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 021205:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 021202, tested positive for THC.

 021207:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Specification: In that Seaman Recruit J_ A. L_ (Applicant), U.S. USS PREBLE (DDG 88), on active duty, did at or near Boston, Massachusetts, on or about 2100, 09 November 2002, wrongfully use marijuana, a Schedule 1 controlled substance.
 Award: Restriction for 60 days. No indication of appeal in the record.
030122:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.
030122:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

 030207:  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 use and misconduct due to a pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

030207:  Applicant to unauthorized absence (UA). [Extracted from CO’s letter of 030222]

030212:  Applicant from unauthorized absence. Applicant missed movement during this period of UA and, upon return, admitted to drug use while UA. [Extracted from CO’s letter of 030222]
030214:  LT T. M. C_, JAGC, USNR, Counsel for the Respondent, Naval Legal Service Office Southwest recommended to Commanding Officer, USS PREBLE (DDG 88), that the Applicant be separated with a characterization of a General (under Honorable conditions).

030222:  Commanding Officer, USS PREBLE (DDG 88), recommended to Commander, Naval Surface Force, U.S. Pacific Fleet, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. Commanding Officer provided a chronological sequence of events and his comments: “SR L_ (Applicant) has been given the opportunity to receive counseling for alcohol abuse both through Command DAPA and SARD Residential Treatment. He was provided the earliest possible SARD referral upon arrival San Diego. He has been interviewed by the Command DAPA on a bi-weekly basis (minimum) from the time he checked onboard in late August until the present. SR L_ (Applicant)’s DAPA file was not reviewed by the Counsel for the Respondent or Recorder during the Administrative Separation Board. The Command DAPA, SKC A_ L_, could not effectively address SR L_ (Applicant)’s Command DAPA interviews without the DAPA records present. (The assistant Command DAPA, GSE1 T_ M_ conducted SR L_ (Applicant)’s interviews).
 SR L_ (Applicant)’s consistent disregard for military regulations, to include several Unauthorized Absences, as well as missing ship’s movement, coupled with two separate violations of the Navy’s Zero Tolerance Policy for drug use, warrant immediate separation from the United States Navy. The repeated drug use couple with a continued pattern of misconduct warrant separation under other than honorable conditions.”
030317:  Commander, Naval Surface Force, U.S. Pacific Fleet, informed LT T. M. C_, JAGC, USNR, Naval Legal Service Office Southwest, that the findings and recommendations of the board members were procedurally correct and supported by the evidence and as accordingly, the request for relief is denied.

030317:  COMNAVSURFPAC , directed the Applicant's under other than honorable conditions discharge by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030318 by reason of misconduct due to drug abuse (A and B) 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 (C and D).

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 three nonjudicial punishment proceedings for violations of Articles 86, 111 and 112a of the UCMJ. The Applicant’s two violations of Article 111 for drunken operation of a vehicle, occurred two days apart. Subsequent to the Applicant’s administrative separation board, the Applicant went in an unauthorized absence status for five days, missed movement and upon his return admitted to drug use during this unauthorized absence period. The Applicant’s violations of Articles 87 and 111 of the UCMJ are considered serious offenses. The Applicant’s misconduct is a violation of the special trust bestowed upon the Applicant in the form of a waiver for his prior entry-level separation due to a positive drug accession test. 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 contends his discharge was inequitable because it was based on “one incident” and implies that if his command would have sent him to rehabilitation promptly, the Applicant would have not used drugs during his enlistment. 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 Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. While the Applicant may feel that his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Applicant’s enlistment required a waiver for his prior entry-level separation, when he was discharged for a drug accession testing failure. The Applicant used drugs prior to enlistment and on multiple occasions during his enlistment. Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.

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 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 87, missing movement and Article 111, drunken driving.

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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