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NAVY | DRB | 2005_Navy | ND0501436
Original file (ND0501436.rtf) Auto-classification: Denied


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

ex-AEAN, USN
Docket No. ND05-01436

Applicant’s Request
The application for discharge review was received on 20050830. 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 20060504. 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 General (Under 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 attached document/letter:

“I would like my discharge upgraded because of my career leading up to the situation that caused my seperation. Also the fact that I was influenced by a fellow sailor and made the wrong decision. I will enclose documentation showing that I was a hard working sailor with honor, courage and commitment. I made a terrible mistake under the bad influence of a fellow sailor and hope that the Board will take this into consideration. Very Respectfully, D_ F_(applicant)

I would also like to add that I enjoyed being a sailor and that I would sign up again if I had it to do all over. Since I have been home I have purchased a home and I have a full-time steady job. My discharge is the one thing in my life I would like to change. I hope you, the Board, will look kindly upon me and consider my request. Thank you. D_ F_(applicant)”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Evaluation Report and Counseling Record, dtd June19, 2003
OPNAV 4790, dtd July 22, 2003
OPNAV 4790, dtd March 19, 2003
Letter of Appreciation, dtd December 14, 2001
Letter of Appreciation, dtd October 22, 2001
Recommendation for the accelerated advancement program, dtd January 28, 2002
Certificate of completion of Quality Assurance Officer/Supervisor Course, dtd August 20, 2003
Certificate of completion of Preparing a Standard Naval letter, dtd June 26, 2003
Certificate of completion of How to Identify Flight Deck Personnel and Their Responsibilities, dtd June 26, 2003
Certificate of completion of Shore Installation Management, dtd June 26, 2003
Certificate of completion of Systems Thinking, dtd June 26, 2003
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010424 - 20010523      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010524             Date of Discharge: 20040122

 Length of Service (years, months, days):

         Active: 02 07 29
         Inactive: None

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

 Age at Entry: 20

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 84

 Highest Rate: AE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.7 (3)                       Behavior: 3.5 (4)        OTA: 3.57
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal/Overseas Service Ribbon


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

010424:  Pre-service waiver for DUI granted.

020719:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 121 - Larceny. Violation of the UCMJ, Article 134 - Indecent language.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030916:  Applicant detained by German police at Dussledorf train station after finding drugs (25 grams of psychedelic mushrooms) in his possession. Fined 125 Euro. [Extracted from Commanding Officer’s letter dated 031219.]
031001:  NCIS report of detainment by German police. [Extracted from Commanding Officer’s letter dated 031219.]

031009:  NJP for violation of UCMJ, Article 112a: (2 specs):
         Specification 1: In that Aviation Electrician’s Mate Third Class D_ P. F_(applicant), U.S. Navy, Aircraft Intermediate Maintenance Department, U.S. Navy Air Station Sigonella, Sicily, Italy, on active duty, did, at or near Dussledorf, Germany, on or about 16 September 2003, wrongfully possess 50 grams of psychedelic mushrooms a Scheduled I controlled substance.
         Specification 2: In that Aviation Electrician’s Mate Third Class D_ P. F_(applicant), U.S. Navy, Aircraft Intermediate Maintenance Department, U.S. Navy Air Station Sigonella, Sicily, Italy, on active duty, did, at or near Dussledorf, Germany, on or about 16 September 2003, wrongfully possess one marijuana joint, a Scheduled I controlled substance.
         Award: Forfeiture of $721 per month for 2 months, restriction for 60 days, reduction to E-3. No indication of appeal in the record.

031105:  Applicant found physical qualified for separation.

031203:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - drug abuse.
031215:  Applicant submitted a waiver of right to administrative separation board and a request for a general discharge.
031215:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.
031219:  Commanding Officer, U.S. Naval Air Station, Sigonella, Italy directed discharge with a general (under honorable conditions) by reason of misconduct - drug abuse. Commanding Officer’s comments: “AEAN F_(applicant) according to NCIS report of 1 October 2003, was found in possession of 25 grams of psychedelic mushrooms a Schedule I controlled substance by German police near Dussledorf. The German police detained him temporarily before giving him a 125 Euro fine and released him. This behavior is unacceptable and will not be tolerated.
 I believe that AEAN F_(applicant) should be separated from the naval service with the least favorable characterization of General (Under Honorable Conditions).”

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040122 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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).

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. A general 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. T he Applicant’s service was marred by 1 retention warning and 1 nonjudicial punishment proceeding for violations of Article 112a (2 specifications) of the UCMJ. Violation of UCMJ Article 112a is a serious offense normally resulting in a service characterization of other than honorable. 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 that his culpability should be mitigated because he “was influenced by a fellow sailor and made a wrong decision.” While he may feel that the influence of a fellow sailor was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either 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 12 pages of service record documentation and no documentation of post-service accomplishments. The Applicant states he has a full time steady job and has purchased a home. The Applicant's efforts to document post service accomplishments 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. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, relief is not appropriate.

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), re-issued October 2002, effective 22 Aug 2002 until Present, 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, possession of 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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