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NAVY | DRB | 2005_Navy | ND0501259
Original file (ND0501259.rtf) Auto-classification: Denied


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

ex-EWSN, USN
Docket No. ND05-01259

Applicant’s Request
The application for discharge review was received on 20050725. 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 20060421. 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 application:

“I successfully completed every single day of my obligated enlistment. 02/08/88 –02/08/94 6yrs (AEP) I was discharged on the final day of my enlistment due to a positive urinalysis screening for marijuana. My legal representation, a JAG, provided out of NAS Corpus Christi failed to ask for an extension to properly rebuke the DRB’s findings, which would have pushed me past my final days of enlistment resulting in an Honorable discharge. Also my discharge was improper because my waiver, properly listed in my enlistment documents (marijuana) was used in my discharge proceedings. I also had no other adverse actions in my record, and received straight 4.0 evals for 3yr prior. I have received many commendations including my good conduct service ribbon. Therefore I respectfully request that my discharge be upgraded to Honorable. Thank you for time and consideration,

Respectfully.
[signed] C_ R. T_ (Applicant)


P.S. My duty station was the U.S.S. Truett FF-1095 stationed out of Ingleside TX.”
Documentation
Only the service and medical records was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19870807 – 19880801               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19880802             Date of Discharge: 19940730

 Length of Service (years, months, days):

         Active: 05 11 29
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4 (24 month extension)

 Education Level: 12                                 AFQT: 81

 Highest Rate: EW2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.83 (8)             Behavior: 3.85 (8)                OTA: 3 .85

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal w Bronze Star, Good Conduct Medal, Battle Efficiency Ribbon, Letter of Commendation, Sea Service Deployment Ribbon, Naval Reserve Sea Service Deployment, Armed Forces Expeditionary Medal, Meritorious Unit Commendation.


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 :

870804:  Applicant acknowledged Navy’s Drug and Alcohol Abuse Statement of Understanding.

 880823:  Drug and Alcohol Abuse Report: Indicates marijuana abuse as a result of a service directed urinalysis, recommended for retention and Level I treatment not including NADSAP.
890807:  Retention Warning: Advised of deficiency (Identified as a drug abuser resulting in a drug waiver to enlist in the U.S. Navy), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
940627:  NAVDRUGLAB, JACKSONVILLE, FL, reported Applicant’s urine sample, received 940623, tested positive for THC.
940701:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
940706:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to drug abuse and all incidents of misconduct which have occurred during current enlistment.

940706:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
940717:  Drug and Alcohol Abuse Report: Indicates marijuana abuse and Commanding Officer’s recommendation for separation not via VA hospital.
940722:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed misconduct due to commission of a serious offense, and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
940723:  Commanding Officer, USS TRUETT (FFT 1095) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents which have occurred during current enlistment. Commanding Officer’s comments: “Immediately after CO’s NJP on 01 July 1994, an attempt was made to schedule an administrative board. Unfortunately, the one JAG Corps officer who handles administrative boards for the state of Texas was not available until the week of 18 July 1994. An extensive search for an active duty line officer to serve as senior member of the board was conducted on board both Naval Station Ingleside and Naval Air Station Corpus Christi. Due to the fact that TRUETT will decommission on 30 July 1994, I was not entirely at liberty to wait for the availability of an active duty line officer. Further, the respondent’s EAOS of 01 August 1994 eliminated the possibility of transferring him to another command awaiting processing. Under the advice of the Staff Judge Advocate at Naval Air Station Corpus Christi, I convened this board after a steady pressing effort to locate an active duty line officer during the required time frame fell short. I upheld the ruling of the senior member of the board with regard to the challenge lodged by the counsel for the respondent against a voting member of the board. It was my opinion that there was not sufficient evidence to support the claim made by the counsel for the respondent and that the challenge was made as a stalling tactic. After reviewing the record of proceedings, my conclusion remains the same. Based on the findings and recommendation of the administrative board, I recommend that Petty Officer T_ (Applicant) be separated from the naval service. I further recommend that his discharge be under Other than Honorable conditions.”

940728:  Letter of Deficiency in the case of [Applicant] filed by Applicant’s counsel. [Date extracted from Commanding Officer’s letter dated 940728.]

940728:  Letter of Deficiency forwarded by Commanding Officer to Chief of Naval Personnel.

940728:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19940730 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).

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 or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 112a of the UCMJ. 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 contends he “successfully” completed his obligated enlistment, had no other adverse actions on his record, had “4.0 evals” and received “many comendations.” The Applicant was discharged on 19940730 after 5 years, 11 months and 29 days of service by reason of misconduct due to drug abuse. The Applicant is reminded that members of the Armed Forces are required to adhere to the Uniformed Code of Military Justice throughout their enlistment. Though the Applicant was close to completing his enlistment contract, the Applicant tested positive for illegal drug use for a urinalysis conducted in June 1994. Separation under these conditions generally results in characterization of service under other than honorable conditions. Relief denied.

The Applicant contends that his legal representation failed to “request an extension” to “rebuke” the administrative discharge board’s finding and recommendations. The record shows the Applicant’s counsel filed a letter of deficiency on July 28, 1994. The letter of deficiency was forwarded to the separation authority and the separation authority subsequently directed the Applicant’s discharge. The Board found no indication in the record that the Applicant was improperly represented or that the Applicant’s counsel was ineffective. There is no indication in the record that the Applicant’s separation processing was improper or inequitable. Relief denied.

The Applicant contends that his discharge was improper because an enlistment waiver for marijuana was “used” in his discharge proceedings. For the edification of the Applicant, appropriate regulations permit the consideration of prior drug use for determination of a member’s suitability for further service but not for the determination of the member’s character of service. There is no evidence in the record that the Administrative Discharge Board, Commanding Officer or Separation Authority inequitably or improperly considered the Applicant’s positive urinalysis during accession testing. 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. 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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