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NAVY | DRB | 2005_Navy | ND0501201
Original file (ND0501201.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND05-01201

Applicant’s Request
The application for discharge review was received on 20050720. The Applicant requested that her characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requested 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 20060209. After a thorough review of all available 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 characterization 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:

“I was charged with 30 days in the Miramar Brig, bumped down to the lowest pay grade and OTH discharge. I only served for a year and a half, 8 months I feel my punishment was unjust. I should have been charged with failure to adjust to military life style because of the time I served.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
 Separation travel orders, dated July 13, 2004
Applicant’s DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20020328 - 20021112      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20021113             Date of Discharge: 20040714

 Length of Service (years, months, days):

         Active: 01 08 01 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 8 days
         Confinement:              30 days

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 11                                 AFQT: 61

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                                    Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal; Navy “E” Ribbon; Global War on Terrorism Service Medal
* Not Available


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 :

030707:  Applicant to unauthorized absence on 030707.
030708:  Applicant from unauthorized absence on 030708.

030805:  NJP for violation of UCMJ, Article 86 (unauthorized absence, from 030707 until 030708), Article 90 (disobey a superior commissioned officer, 3 specifications), and Article 107 (false official statement).
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.

 040430:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040423, tested positive for amphetamine/methampetamine.

 040521:  Summary Court-Martial for violation of the UCMJ, Article 112a (wrongful use of a controlled substance).
Plea: Guilty.            
Finding: Guilty.
          Sentence: Forfeiture of $829.00, confinement for 30 days, reduced to E-1.
         CA action 040614: Sentence approved and ordered executed.
        
040521:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct - pattern of misconduct, misconduct - commission of a serious offense, and misconduct - drug abuse. The Applicant indicated her desire to seek counsel.
040706:  Applicant to unauthorized absence.

 040708:  Commanding Officer, USS NIMITZ (CVN 68) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse. Commanding Officer’s comments: “OSSN B_(Applicant) is no longer fit for naval service. She has developed an ongoing pattern of misconduct. At a Summary Court-Martial held 21 May 2004, she was convicted of wrongfully using methamphetamines. OSSN B_(Applicant) knew of the Navy’s zero tolerance policy on drug abuse and she violated that policy. Previously, at Commanding Officer’s nonjudicial punishment held 5 August 2003, she was awarded punishment for unauthorized absence, disobeying a commissioned officer and false official statement. She clearly has no regard for the Navy’s rules and regulations. Additionally, OSSN B_(Applicant) has been in an unauthorized absence since 6 July 2004. I most strongly recommend she be separated in absentia with a characterization of Other Than Honorable Conditions.”

040708:  Commander, Cruiser-Destroyer Group FIVE 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, in absentia, on 20040714 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 all available 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 discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record. The Applicant’s service record documents nonjudicial punishment (NJP) for violations of UCMJ, Article 86 (unauthorized absence), Article 90 (disobey a commissioned officer, 3 specifications), and Article 107 (false official statement) followed by summary court martial for a violation of UCMJ, Article 112a (wrongfully using a controlled substance, methamphetamine). Applicable regulations dictate processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which the Applicant was discharged. Furthermore, the Applicant was discharged in absentia as a result of her unauthorized absence following summary court martial. Separation under these conditions generally result in an under other than honorable conditions characterization of service. The Board could discern no inequity or impropriety. Relief denied.

 The Applicant contends that her punishment was unjust . The Board inferred from this statement that the Applicant considers her discharge as punishment. For the edification of the Applicant, the administrative discharge process is separate and distinct from punitive proceedings such as NJP and court-martial. Administrative discharge processing is administrative in nature and not a form of punishment. The a dministrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate process. The Applicant’s issue is without merit. Relief not warranted.

The Applicant contends that she should have been charged with failure to adjust to military lifestyle. For the edification of the Applicant, when a service member fails to adapt to the naval environment that service member may be separated by Naval Military Personnel Manual Article (MILPERSMAN) 1910-154. However, this reason for discharge is classified as an entry-level separation and therefore only valid during the first 180 days of enlistment. In this case the Applicant served over 20 months on active duty making her ineligible for a failure to adjust discharge. This does not merit relief.

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 her 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. 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 each violation of UCMJ, Article 90, 107, and 112a.
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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