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NAVY | DRB | 2005_Navy | ND0501279
Original file (ND0501279.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND05-01279

Applicant’s Request
The application for discharge review was received on 20050727. The Applicant requested a record review and that his characterization of service be changed to honorable. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. 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

Applicant’s issues, as stated on the application:

“An upgrade would bring closure to an ongoing event that has socially crippled me for some time.”

 Documentation
The Applicant submitted the following additional document to be considered in addition to the service and medical record:
Character Reference letter from Pastor S_ G_, dated July 18, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR   19910805 - 19920201      COG
          Active: USN      19920207 – 19940201      HON
Period of Service Under Review :
Date of Enlistment: 19940202             Date of Discharge: 19940325

 Length of Service (years, months, days):

         Active: 00 01 23 (Does not exclude lost time.)
         Inactive: None

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

 Age at Entry: 23

 Years Contracted: 4

 Education Level: 14                                 AFQT: 34

 Highest Rate: EN3

 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, Sea Service Deployment Ribbon, Southwest Asia Service Medal.

* Not Available


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 :

940202:  Reenlisted this date for a term of 4 years.
940215:  Applicant to unauthorized absence at 0715 on 940215.

 940222:  Applicant from unauthorized absence at 1547 on 940222
         (7 days/surrendered).

 940223:  NJP for a violation of the UCMJ, Article 86 (unauthorized absence).
         Award: Forfeiture of $466 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

940303:  NJP for a violation of the UCMJ, Article 112a (wrongful use of controlled substance).
         Award: Restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
940307:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct due to drug abuse.
940307:  Applicant elected not to consult with counsel and to waive all rights.
940308:  Commanding Officer, USS PENSACOLA (LSD-38) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. SNM tested positive for cocaine during random command urinalysis conducted on 94Feb23. Commanding Officer’s comments: “FR A_(Applicant) is being processed for admin separation meeting the minimal requirement for separation by reason of misconduct due to drug abuse. I recommend his discharge be under other than honorable conditions.”

940315:  BUPERS 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 19940325 by reason of misconduct due to drug abuse (A) 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 (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. 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. The Applicant’s service record documented two nonjudicial punishments for violations of the UCMJ, Article 86 (unauthorized absence) and Article 112a (wrongful use of controlled substances). Both of these violations occurred in the Applicant’s second and final enlistment of less than two months. Separations under these conditions generally result in an under other than honorable conditions characterization of service. The Board could discern no impropriety or inequity. Relief denied.

Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service. There are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis for administrative discharge and the characterization of a Sailor’s overall service. Processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged. The evidence of record clearly documents the Applicant’s blatant disregard for authority and does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service prior to his drug use does not excuse him of responsibility for the misconduct that resulted in his discharge. Relief denied.

 There is no law or regulation, which provides that an unfavorable discharge may be upgraded based 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 evidence of a drug free life, educational documents, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided a letter from his pastor stating his involvement in the Men’s Bible program for the Board’s consideration. T he Board concluded the Applicant’s post service conduct to be insufficient to mitigate his misconduct while in the Naval service. 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, 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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