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NAVY | DRB | 2005_Navy | ND0501112
Original file (ND0501112.rtf) Auto-classification: Denied


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

ex-AEAA, USN
Docket No. ND05-01112

Applicant’s Request
The application for discharge review was received on 20050624. 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 20060112. 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 attached document/letter:

“I believe my discharge from the United States Navy was improper because I served 99.9% of my enlistment in the Navy. I enlisted on the 26 th of September 2000 and was other than honorably discharged on the 23rd of September 2004. I signed an Agreement to reenlistment for 11 months in May of 2004 to go on Detachment to Bahrain but did not even start that new reenlistment.
I also believe that my discharge form the Navy was improper because I was a model sailor. As you can see from my evaluations that are attached I was one of the best sailors in my squadron. I went to work everyday and did my job to the best of my ability for my country, kept up with all my qualifications and when I made my first big mistake and got my DUI I did not even let it slow me down. I kept on doing my job and kept going forward.
I also believe my discharge was improper because this act was a one time incident. I went on leave back home to Kansas City, Missouri, came back to HM-15 to check in off leave and given a piss test. As you know, I failed. As I said above, this was completely a one time incident and I should have known what could have happen but I was not thinking and I made a mistake. I just do not want to be punished for something I did when I was a kid for the rest of my life.
I also believe my discharge was improper because when my commanding officer gave me my discharge he did not even take into consideration what kind of sailor I was nor did he even think about my family. I have an infant child and a wife to take care of. He did not even let any of the people who were at my mass for me speaking on my behalf. He just called me and laid the book on me not even considering my evaluations or what kind of sailor I was and how I was respected within my work center That is all he did was look at the bad things I have done in my service to my country and none of the good I have done. But, in our nature it is always easier to concentrate on the bad then the good isn’t it?
I also believe my discharge was improper because of the awards I received while I was in. I received a letter of Commendation from my commanding officer for professional achievement of my duties as a Mine Countermeasures Work Center 16B AMCM Technician in HM-15. I was also appointed to third class petty officer in 2002 and if you look at my evaluations you will see I was a model sailor.
I also believe my discharge was improper because after my captains mass for my urinalysis I attended SARP or Substance Abuse Rehabilitation Program and was found not to be dependent on marijuana but an abuser. I volunteered for a two week rehab program at Padre Behavioral Clinic in Corpus Christi, TX which I completed with flying colors. I have attached documentation in the evidence section for proof of this.

I believe my discharge was improper for personal reasons as well. Like I wrote above I served 99.9% of my enlistment. I did my tour and I served my country to the best of my ability. I understand that the military is a 24 hour a day 7 days a week job. I messed up and I made some mistakes. If I could go back trust me I would change a lot of things I did while I was in. I was dumb and stupid and young. I have really learned a lot since I have been discharged from the Navy. I do not think I deserve an honorable discharge because I feel my service was not honorable in the sort of way an honorable discharge pertains to. I made a lot of mistakes, not in my professional life sort of speak but in my personal life which affected my professional life. The reasons I feel I do not deserve a honorable discharge is because people have been serving this country for over two hundred years and I believe that there is a certain deserving and standard for people that are awarded honorable discharges. Either they served there country with no mess ups or they did not get caught. I do believe I deserve a general discharge under honorable conditions because I did serve 99% of my enlistment and I was a good sailor. I did serve my country and I did obey almost all of the orders of the officers appointed over me. I was just young and stupid and made dumb mistakes. I ask that you please consider the good things I did for my country and not the bad. But, please even put the bad into perspective because I do not deserve an honorable discharge. Please consider giving me a general discharge under honorable conditions. Please, do not make me and also my family suffer for the dumb mistakes I made when I was a kid for the rest of my life. Thank you for taking my case into consideration.

C_ R_ [SSN omitted]”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Petty Officer Third Class Designation ltr dtd November 27, 2002
Letter of Commendation
Enlistment Extension Agreement
Examination Profile Information
Evaluation Report & Counseling Record (14 pgs)
Enlistment/Reenlistment Contract
Court Memorandums, Records of NJP (2 pgs)
Drug and Alcohol Incident Reports (2 pgs)
Alcohol-Impact Completion ltr dtd December 17, 2003
Alcohol Evaluation dtd November 4, 2003
Alcohol Evaluation dtd August 4, 2004
Outpatient Treatment Completion ltr (2 pgs)
PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000808 – 20000925               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000926             Date of Discharge: 20040923

 Length of Service (years, months, days):

         Active: 03 11 28
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4 (23 month extension)

 Education Level: 12                                 AFQT: 55

 Highest Rate: AE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (9)             Behavior: 2.44 (9)                OTA: 3 .13

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E” Ribbon, National Defense Service Medal, Armed Forces Expeditionary 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 :

031104:  Alcohol Evaluation: SNM command referred for suspicion of driving while intoxicated (DWI). SNM meets the criteria for alcohol abuse per ref (a) DSM-IV-TR. Recommended for Level .5 Impact treatment for alcohol abuse [Extracted from Applicant’s supporting documents].

031113:  NJP for violation of UCMJ, Article 111: Drunken or reckless operation of vehicle, aircraft or vessel.
         Award: Forfeiture of $832.65 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

031118:  Drug and Alcohol Incident Report: Alcohol abuse identified by Military Police Law Enforcement, found not dependent, is amenable and eligible for treatment. Commanding Officer’s comments: “SMN was screened at NAS Corpus Christi SARP and recommended for IMPACT (Level .5) intensive alcohol misuse education.” [Extracted from Applicant’s supporting documents].

031217:  Applicant completed SARP Alcohol-Impact [Extracted from Applicant’s supporting documents.

040720:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc., of controlled substance.
 Award: Forfeiture of $250 pay per month for 2 months, restriction for 45 days, reduction to E-2. No indication of appeal in the record.
040804:  Alcohol Evaluation: SNM command referred for positive urinalysis test for THC. SNM meets the criteria for substance abuse per ref (a) DSM-IV-TR Criteria: A-1, Substance use resulting in a failure to fulfill major role obligation at work, and A-3; Recurrent substance related legal problems. This is indicative of abuse and recommend SMN be offered Level I, Outpatient treatment for alcohol abuse at Treatment Facility. AEAN R_ is considered a treatment failure based on previous Level .5 IMPACT, treatment on 031217 [Extracted from Applicant’s supporting documents].

040815:  Drug and Alcohol Incident Report: Marijuana abuse as a result of a random urinalysis, found not dependent, is amenable and eligible for treatment. Commanding Officer’s comments: “SMN tested positive for marijuana on message 162357Z. SMN was screened on 040804 by SARP NAS Corpus Christi. SMN was recommended for Level I outpatient treatment. SMN completed Level I outpatient treatment on 040906 and is being processed for administrative separation.” [Extracted from Applicant’s supporting documents].

040923:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040923 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 Board presumed regularity in the conduct of governmental affairs (D).

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. While the record is incomplete, there is credible evidence to suggest the Applicant wrongfully used illegal drugs. The Applicant was awarded nonjudicial punishment for a violation of UCMJ Article 112a, wrongful use, possession, etc., of a controlled substance. The Applicant was administratively processed for separation by reason of misconduct due to drug abuse because 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 government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to rebut the presumption of his illegal drug use or that his resulting separation from the Naval service was improper or inequitable . Relief denied.

The Applicant contends that his discharge is improper because he completed “99.9%” of his enlistment. The evidence of record indicates that the Applicant enlisted under a four year active duty contract with an aggregate 23 month extension. At the time of his discharge, the Applicant had only completed 3 years, 11 months and 28 days of a total 5 year 11 month commitment. The Board found the Applicant’s contention to be without merit. Relief denied.

The Applicant contends that his discharge is inequitable because it is based on a single isolated incident. 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 Article 111, drunken or reckless operation of a vehicle, aircraft or vessel, and UCMJ Article 112a, wrongful use, possession, etc., of a controlled substance. 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 contends his discharge was inequitable because of his youth and immaturity at the time of service. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted most servicemembers begin their service at a relatively young age. It must further be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant implies that his discharge should be upgraded because of his successful completion of Substance Abuse Rehabilitation Program or SARP. The evidence of record does indicate that the Applicant completed Level I treatment after his positive urinalysis for THC. Although the Applicant’s commitment to living a substance free lifestyle is commendable, the Board concluded that the Applicant’s efforts at rehabilitation are thus far, insufficient to mitigate his misconduct while on active duty. 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), 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 .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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