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NAVY | DRB | 2005_Navy | ND0501337
Original file (ND0501337.rtf) Auto-classification: Denied


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

ex-ENFN, USN
Docket No. ND05-01337

Applicant’s Request
The application for discharge review was received on 20050808. 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. Subsequent to the application t he Applicant designated American Legion as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060427. 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 and/or attached document/letter:

“Reference your letter dated 9/30/04. The circumstances surrounding my discharge are as follows: I enlisted in the Navy 2/2/99 for four years. The first two years, everything was going fine. I received excellent ratings and I was happy and everyone was happy with me and my performance. It was not until sometime in late 2000 or early 2001 that things began to take a turn for the worse. I had been raised by my great grandmother and my grandmother due to the illness of my mother. My grandmothers were as much my mother as my real mother was. When my great grandmother became ill, I was made aware of a program whereby I could be reassigned to the recruiting station where I signed up for in order to be close to my great grandmother. This would have been in Rochester NY which was to far from my great grandmother who lived in New York City. Since this was not a possibility, I tried to take leave and go and see her. It was not until the Red Cross got involved that I finally was able to go home. I was only home for a few hours when my great grandmother passed away. I called and had my leave extended in order to stay for the funeral. I returned back to the base on time with no problems.

After returning, I had a hard time adjusting due to the many problems I had at home. The passing of my great grandmother, as well as the sickness of my grandmother, mother and brother, it was more than I could stand. My father was in the Army with service in Vietnam and died at the age of 49 when I was 21 and just before I entered the Navy. I made a mistake, one time, and thought I could relieve my stress by taking drugs. This one time mistake caused me to be released from the Navy under conditions Other Than Honorable. I know involvement with drugs is wrong, but at my young age and the many problems at home, I don’t feel as though I should be punished forever for this one mistake. I respectfully request you consider all these facts when deciding my claim.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character/Job Reference ltr from D_ D. B_, Senior Vice President, Mobile Sheet Metal, dtd June 23, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990108 - 19990201      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19990202             Date of Discharge: 20020723

 Length of Service (years, months, days):

         Active: 03 05 22
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 21

 Years Contracted: 4

 Education Level: 12                                 AFQT: 32

 Highest Rate: EN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (5)                       Behavior: 2.6 (5)        OTA: 3 .00

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Joint Meritorious Unit Award, Navy Unit Commendation, Navy “E” Ribbon, Humanitarian Service Medal, Sea Service Deployment Ribbon, Kosovo Campaign Medal, Expert Rifleman Medal, Expert Pistol Shot Medal, National Defense Service 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 :

011129:  NJP for violation of UCMJ, Article 91: Disrespect towards a chief petty officer.
 Violation of UCMJ, Article 92: Failure to obey other lawful order.
Date of offense: 30 October 2001
          Award: Restriction and extra duty for 15 days. No indication of appeal in the record.

011130:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 91, disrespect to a chief petty officer and Violation of the UCMJ Article 92, disobey other lawful order, as evidenced by Non-judicial punishment held on 29 November 2001.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 020610:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020604, tested positive for cocaine.

020617:  NJP for violation of UCMJ, Article 112a. No further information found in service record. [Extracted from Commanding Officer’s letter dated 020709.]
         Award: Forfeiture of ½ months pay for 2 months, restriction and extra duty for 45 days, reduction to E-3. [Extracted from NAVPERS 1070613 dated 020618.]

020618:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.
020618:  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.
020618:  Counseling: Advised of deficiency (Viol. of UCMJ Art 112a - Wrongful use of a controlled substance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 020709:  Commanding Officer, Helicopter Mine Countermeasures Squadron 15 recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “Service member admitted to use of cocaine at non-judicial punishment. Request administrative separation under other than honorable conditions.”

020718:  Commander, Mine Warfare Command 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 20020723 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 the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant contends that his problems in the Navy can be attributed to multiple family problems including the death of his great grandmother and the sickness of his grandmother, mother, and brother. He contends he made a one-time mistake, by taking cocaine; to relieve this family induced stress. 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 that most members of the Navy 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.
There is credible evidence in the record that the Applicant used illegal drugs. The Applicant was punished at NJP on 20020610 for violation of UCMJ Article 112a: wrongful use of a controlled substance. 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. Additionally, the applicant was punished at NJP on 20011129 for violation of UCMJ Article 91: disrespect towards a chief petty officer and violation of UCMJ, Article 92: Failure to obey other lawfull order. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided one letter of recommendation from his employer as documentation of his post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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 additional evidence related to this 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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 violation of the UCMJ, Article 112a, Wrongful use of a controlled substance.
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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