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NAVY | DRB | 2005_Navy | ND0501113
Original file (ND0501113.rtf) Auto-classification: Denied


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

ex-GSMFN, USN
Docket No. ND05-01113

Applicant’s Request
The application for discharge review was received on 20050622. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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:

“I had 4 yrs 5 months good service time. I went AWOL when my daughter in NY was in trouble. I did a stupid thing by going AWOL and using a controlled substance during that time. I was penalized while in service so I feel my discharge was too severe under the circumstances also the incident with the Italian police was a big misunderstanding. I did not assault an officer. I just pushed him away from me because he was going to use a stun gun on me. I asked them to call the MP’s but they refused.

I would like to come to the Board and fully explain my case.

I have a clean record since service.

I am self-employed.”

 Representative submitted no issues.
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19991208 - 19991221      COG
          Active: USN      19991222 - 20031218      HON
Period of Service Under Review :
Date of Enlistment: 20031219             Date of Discharge: 20040609

 Length of Service (years, months, days):

         Active: 00 05 21 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    7 days
         Confinement:                       None

 Age at Entry: 38

 Years Contracted: 4

 Education Level: 12                                 AFQT: 35

 Highest Rate: GSM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1 .33

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): NATO KOSOVO Medal, Navy “E” Ribbon, Navy and Marine Corps Overseas, Service Ribbon, Sea Service Deployment Ribbon, National Defense Service 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 :

031219:  Reenlisted this date for a term of 4 years.
040401:  Applicant to unauthorized absence, 0600, 040401.

040409:  Applicant from unauthorized absence, 0515, 040409 (7 days/surrendered).

 040423:  NJP for violation of UCMJ, Article 86: UA from 0600, 1 April to 0515, 9 April 2004.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.

040423:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86 - Unauthorized absence from 0600 1 April to 0515, 9 April 2004 as evidenced by Commanding Officer’s nonjudicial punishment of 23 April 2004.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 040425:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040420, tested positive for cocaine. [Date extracted from Commanding Officer’s letter dated 040528.]

 040507:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession etc. of controlled substance.
         Award: Forfeiture of $842 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

040520:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.
040520:  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.
040528:  Commanding Officer, USS MUSTIN (DDG 89) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis tested and confirmed positive at a Navy Drug Screening Lab. Commanding Officer’s comments: “(1) As is Command policy after a 24 hour absence, GSMFN S_ (Applicant) was given and consented to a urinalysis after returning from his unauthorized absence 0600, 1 April to 0515, 9 April 2004. He was subsequently sent to nonjudicial punishment on 23 April 2004 for violation of UCMJ Article 86 for that period. Results of his positive urinalysis for cocaine were received onboard MUSTIN 25 April 2004.
         (2) During his Captain’s Mast for violation of UCMJ Article 112a on 7 May 2004, GSMFN S_ (Applicant) stated that he knew the Navy’s policy on drug use was zero tolerance, and knowingly violated the policy. I recommend GSMFN S_ (Applicant) be separated from Naval Service with an Other Than Honorable characterization of service.
         (3) GSMFN S_ (Applicant) was afforded the opportunity to elect an Administrative Board, but waived the right. Therefore, no Administrative Board was held in this case.

040604:  Applicant declined drug and alcohol treatment.

040607:  COMNAVSURFPAC San Diego, CA 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 20040609 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) on two separate occasions for violations of UCMJ Articles 86 and 112a for unauthorized absence and wrongful drug use, respectively. 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 implies that his discharge was inequitable because he considers his administrative discharge after his punishment at NJP to be “too severe”. The Applicant’s issue is without merit. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP and court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. In fact, applicable regulations require the mandatory administrative separation processing of any sailor found to have committed certain drug offenses. The Applicant was punished at nonjudicial punishment for his violation of UCMJ Article 112a. Subsequent to this punishment and in strict accordance with regulation, he was processed for administrative separation resulting in his discharge. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

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 any 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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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