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NAVY | DRB | 2005_Navy | ND0501010
Original file (ND0501010.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND05-01010

Applicant’s Request
The application for discharge review was received on 20050602. 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 20051013. 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 attached document:

“I was in a motorcycle accident while on active duty aboard the USS BOXER LHD-4January 1st.1994 to august 31st.I suffered a broken left clavicle and injured my neck and back. Was hospitalized. I was placed on pain medication and excused on medical leave, while on medical leave I was ordered to give a urine sample aboard the ship. Around two days later the police arrested me at home and returned me to the ship. I was then told I had drugs in my system. I was placed on restriction and confined to the ship. They dropped me from E-3 to E-1.Took away all of my money and benifits. They put me in the brig for 3 days bread and water. When I was released I was giving an other than honorable discharge. I was devastated. My family was devastated. Come from a Navy background. My gandfather, father and uncles. I would love to follow their footsteps and retired like they have. I have never done drugs my entire life. Or will I ever. I did my duty honorably. I just had an accident.

Thank You
M_ D_ (Applicant)”

 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)     19931130 - 19940111      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19940112             Date of Discharge: 19950831

 Length of Service (years, months, days):

         Active: 01 07 20 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 57 days
         Confinement:              Unknown

 Age at Entry: 23

 Years Contracted: 4

 Education Level: 12                                 AFQT: 32

 Highest Rate: MSSA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.3 (2)                       Behavior: 2.3 (2)                 OTA: 2.30
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 3630620 .
Chronological Listing of Significant Service Events :

931130:  Pre-service waiver for five minor misdemeanors granted.

 950327:  Applicant to unauthorized absence at 0700 on 950327.

 950404:  Applicant from unauthorized absence at 0710 on 950404.
950414:  Applicant to unauthorized absence at 0700 on 950414.

 950417:  Applicant from unauthorized absence at 0700 on 950417.
950426:  Applicant to unauthorized absence at 0700 on 950426.

 950428:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950424, tested positive for amphetamine/methamphetamine.

 950505:  Applicant from unauthorized absence at 2300 on 950505.

950511:  Applicant to unauthorized absence at 0700 on 950511.

950511:  Applicant from unauthorized absence at 1200 on 950511.
950511:  NJP for violation of UCMJ, Article 86 (4 specs):
         Specification 1: Absence from unit, to wit: USS BOXER, 0700, 27MAR95 to 0710, 04APR95.
         Specification 2: Absence from unit, to wit: USS BOXER, 0700, 14APR95 to 0700, 17APR95.
         Specification 3: Absence from unit, to wit: USS BOXER, 0700, 26APR95 to 0700, 05MAY95.
         Specification 4: Absence from unit, to wit: USS BOXER, 0700, 11MAY95 to 1200, 11MAY95.
         Violation of UCMJ, Article 112a:
 Specification: Wrongfully use an Amphetamine.
          Award: Forfeiture of $425 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

950526:  NJP for violation of UCMJ, Article 86 (4 specs):
         Specification 1: Failure to go to place of duty, to wit: Restricted Personnel Muster on 1215, 12May95.
         Specification 2: Failure to go to place of duty, to wit: Restricted Personnel Muster on 0730, 13May95.
         Specification 3: Failure to go to place of duty, to wit: Restricted Personnel Muster on 0630, 18May95.
         Specification 4: Failure to go to place of duty, to wit: Restricted Personnel Muster on 1215, 19May95.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.

950717:  Medical evaluation by Medical Department, USS BOXER (LHD 4)
          Situation: Patient states taking amphetamines to stay awake (commuting from (address deleted) to Long Beach daily. States did not take to get high. Previous drug use includes THC in high school.
950717:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.
950717:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
950720:  Applicant to unauthorized absence at 0710 on 950720.

 950721:  Applicant from unauthorized absence at 1200 on 950721.
950725:  Drug and Alcohol Abuse Report: Amphetamines abuse. Unit sweep on 950419. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: MSSR D_ (Applicant) has no potential for further useful naval service. Servicemember is a 24 year old male with 1 year, 6 months naval service. He is being processed for administrative separation by reason of misconduct due to drug abuse as evidenced by his conviction at Captain’s Mast. Discharge characterization is “Other than Honorable.”

 950726:  Commanding Officer, USS BOXER, recommended discharge under other than honorable conditions by reason of misconduct due drug as evidenced by all drug incidents in his current enlistment. Commanding Officer’s comments: “MSSR D_ (Applicant) has been an administrative burden since reporting on board. He is below average performer that continues to disobey rules and regulations of the Navy. At NJP on 26 May 95, member was awarded three days bread and water at the brig. Member is becoming more and more a discipline problem. He admitted to drug abuse. He blatantly disregarded the Navy’s policy on drug abuse. Mbr has no desire to remain in the service and has no potential for further useful service. Thus, I recommend that MSSR D_ be administratively separated with an other than honorable discharge.”

 950728:  Applicant to unauthorized absence at 0710 on 950728.

 950801:  Applicant from unauthorized absence at 0700 on 950801.
950802:  Applicant to unauthorized absence at 0700 on 950802.

 950810:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950804, tested positive for amphetamine/methamphetamine.

 950824:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950828:  Applicant from unauthorized absence by apprehension at 1530 on 950828.
950829:  NJP for violation of UCMJ, Article 86 (2 specs):
         Specification 1: In that, Mess Management Specialist Seaman Recruit M_ P. D_ (Applicant), U.S. Navy, USS BOXER, on active duty, did, on or about 0710, 28 July 1995, without authority, absent himself from his unit, to wit: USS BOXER, located at San Diego, California, and did remain so absent until on or about 0700, 01 August 1995.
         Specification 2: In that, Mess Management Specialist Seaman Recruit M_ P. D_ (Applicant), U.S. Navy, USS BOXER, on active duty, did, on or about 0700, 02 August 1995, without authority, absent himself from his unit, to wit: USS BOXER, located at San Diego, California, and did remain so absent until he was apprehended on or about 1530, 28 August 1995.
 Violation of UCMJ, Article 91:
Specification: In that, Mess Management Specialist Seaman Recruit M_ P. D_ (Applicant), U.S. Navy, USS BOXER, on active duty, having knowledge of a lawful order issued by Legalman Second Class T_ M. W_, U.S. Navy, to route your report chit package of 01 August 1995 to your direct chain-of-command immediately, an order which it was his duty to obey, did on board USS BOXER, located at San Diego, California, on or about 01 August 1995, fail to obey the same by wrongfully deviate from, and not comply with, the lawful order.
Violation of UCMJ, Article 112a:
Specification: In that, Mess Management Specialist Seaman Recruit M_ P. D_ (Applicant), U.S. Navy, USS BOXER, on active duty, did on board USS BOXER, located at San Diego, California, on or about 01 August 1995, wrongfully use Methamphetamines a Schedule II controlled substance.
          Award: Forfeiture of $425 per month for 2 months, confinement on bread and water for 3 days. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19950831 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).

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 general 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, 91 and 112a of the UCMJ. The Applicant’s unauthorized absence from 0710 19950720 until 1200 19950721 was never adjudicated. The Applicant tested positive for amphetamine/methamphetamine after he had already been notified of his Commanding Officer’s intention to recommend his discharge due to the Applicant’s previous drug use. The Applicant’s violations of Articles 91 and 112a of the UCMJ are considered serious offenses. The Applicant’s misconduct is considered a violation of the special consideration given the Applicant in the form of an enlistment waiver for five minor misdemeanors. 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 implies that he tested positive for illegal drug use because of the pain medication he was taking due to a motorcycle accident. The Applicant further implies that he was arrested while home on emergency leave and returned to the ship as a result of his positive urinalysis. The Applicant’s misconduct is well documented. The Applicant has eleven documented instances of unauthorized absence. The Applicant tested positive for methamphetamines/amphetamines on two occasions. The medical evaluation aboard the USS BOXER documents that the Applicant stated he used illegal drugs “to stay awake.” The Applicant’s Commanding Officer recommended the Applicant’s discharge and indicated in his recommendation dated 19950726 that the Applicant admitted illegal drug use. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he did not use illegal drugs or commit any of the other infractions which were adjudicated during the Applicant’s enlistment. 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 91, insubordinate conduct and Article 112a, wrongful use of a controlled substance.

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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