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NAVY | DRB | 2005_Navy | ND0500948
Original file (ND0500948.rtf) Auto-classification: Denied


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

ex-DA, USNR
Docket No. ND05-00948

Applicant’s Request
The application for discharge review was received on 20050509. 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 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 20051215. 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:

“The incident that led to my discharge was the first major incident of my 7 year naval career. I had six months left on my enlistment and would never jeopardize losing everything. It was an honest mistake.

I had no previous disciplinary problems before this incident. I would greatly appreciate the Boards consideration in upgrading my discharge to a General discharge. Thank you. Attached are a few of my evals.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Evaluation Report and Counseling Record, dtd February 23, 2001 (2 pages)
Evaluation Report and Counseling Record, undtd, unsigned
Evaluation Report and Counseling Record, dtd July 15, 2004

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: 19980309             Date of Discharge: 20040927

 Length of Service (years, months, days):

         Active: 06 05 26
         Inactive: 00 00 23

 Time Lost During This Period (days):
         Unauthorized absence:    None
         Confinement:                       None

 Age at Entry: 24

 Years Contracted: 8

 Education Level: 13                                 AFQT: 46/35

 Highest Rate: DN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.29 (7)                      Behavior: 2.63 (8)                OTA: 2 .96
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Armed Forces Expeditionary Medal; Navy Unit Commendation Medal; Good Conduct 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 :

980401:  Commenced active duty for a period of 36 months.
010223:  Applicant extended active duty commitment for 48 months.

010717:  NJP for violation of UCMJ, Article 92 (2 specs): P roviding alcohol to a minor and visiting a motel without an approved Special Request Chit on 12 May 2001. [Date and specifications extracted from retention warning dated 010717.]
Award: Forfeiture of $322 pay for one month, restriction and extra duty for 7 days. All suspended for 6 months. No indication of appeal in the record. [Extracted from Evaluation Report and Counseling Record.]
010717:  Retention Warning: Advised of deficiency (Captain’s Mast held 17 July 2001 for violation of Article 92 with 2 specifications of providing alcohol to a minor and visiting a motel without an approved Special Request Chit on 12 May 2001.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
040127:  XOI for violation of UCMJ, Article 86: Unauthorized absence. No further information found n service record. [Extracted from Report and Disposition of Offense(s) dated 040805.]
         Award: Warning/Counseling Pg 13/EMI.

040128:  Retention Warning: Advised of deficiency (Applicant found guilty at executive officer’s inquiry on 27 January 2004 for violation of the following: 1. UCMJ, Article 86 (Absence without leave).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 040729:  NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 040723, tested positive for THC.

 040809:  Applicant’s voluntary statement.

 040811:  NJP for violation of UCMJ, Article 112a: Wrongfully use a controlled substance.
         Award: Forfeiture of $669 per month for 2 months, reduction to DA. No indication of appeal in the record.
040811:  Applicant notified of intended recommendation for discharge by reason of misconduct - drug abuse. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
040811:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit a written statement.
040819:  Commanding Officer, Naval Dental Center, Great Lakes, IL recommended discharge under other than honorable conditions by reason of misconduct - drug abuse. Commanding Officer’s comments: “Per reference (a) and after deliberation with DA W_’s (Applicant) immediate Chain of Command and other pertinent counselors I concur that the member displays no future potential for further useful naval service. I concur that the member’s administrative separation be granted with a characterization of Other Than Honorable.”

040831:  Commander, Navy Region MIDWEST 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 20040927 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).

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. The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use. 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.

The Applicant contends that his discharge is inequitable because it is based on a single isolated incident in his seven year naval career. 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. The Applicant’s service was marred by two separate nonjudicial punishment proceedings for violations of UCMJ Articles 92, failure to obey order or regulation, and 112a, wrongful 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 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 28 April 2005, 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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