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NAVY | DRB | 2005_Navy | ND0501548
Original file (ND0501548.rtf) Auto-classification: Denied


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

ex-SHSA, USN
Docket No. ND05-01548

Applicant’s Request
The application for discharge review was received on 20050920. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20060721. 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:

“My discharge was inequitable because it was based on one isolated incident in 28 months of service with no adverse action.”

 Documentation
Only the service and medical records were 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)     20001020 - 20001030      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20001031             Date of Discharge: 20030207

 Length of Service (years, months, days):

         Active: 02 02 28 (excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 10 days
         Confinement:              None

 Age at Entry: 24

 Years Contracted: 4
Education Level: 12                                 AFQT: 69

 Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)                       Behavior: 1.0 (1)                 OTA: 2 .50
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): 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 :

001020:  Pre-service waiver for dependents granted.

001030:  Pre-service waiver for nine minor traffic violations and marijuana use granted.

001031:  Applicant briefed on Navy's policy of drug and alcohol abuse.
021021:  Applicant to unauthorized absence on 021021.

 021028:  Civil Conviction: General Sessions Court of McMinn County, Tennessee for violation of joyriding.
 Sentence: Costs and restitution of $1000.00 to G_ B_ F_. 364 days of confinement (suspended). [Partially extracted from Commanding Officer’s letter dated 030103.]
021031:  Applicant from unauthorized absence on 021031 (10 days).
021107:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 021104, tested positive for THC.
021114:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct-civilian conviction and misconduct-drug abuse.
021115:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
021120:  NJP for violation of UCMJ, Article 86: Absence from the place of duty .
         Specification: In that Ship’s Serviceman Seaman N_ S H_, U.S. Navy, Naval Station, Annapolis, Mary1and, on active duty, did, on or about 21 October 2002 without authority, absent herself from her place of duty at which she was required to be, to wit Small Craft Repair Division located at Naval Station, Annapolis, Maryland and did remain so absent until on or about 31 October 2002.
         Violation of UCMJ, Article 112a: Wrongful use of a controlled substance .
         Specification: In that Ship’s Serviceman Seaman N_ H_(Applicant), U S Navy, Naval Station, Annapolis, Maryland, on active duty, did, on or about 4 November 02, wrongfully use marijuana.
         Award: Forfeiture of $619.65 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

 021206:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to civilian conviction and misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
021221:  Applicant broke restriction. [Extracted from Commanding Officer’s letter dated 030103.]

021221:  Forfeiture of pay awarded at NJP on 021120 vacated due to continued misconduct. [Date estimated.] [Extracted from Commanding Officer’s letter dated 030103.]

021221:  Competency for duty examination: Competent to perform duty. Returned to full duty.

030103:  NMCL Annapolis, Mental Health Department, Substance Abuse Rehabilitation Program. Psychological Screening Report: Applicant referred to SARP for screening following a positive drug urinalysis and alcohol fit for duty screening (separate incidents).
         Diagnostic Impression:
         AXIS I: Alcohol dependence with physiological dependence
         Depressive disorder, not otherwise specified.
         AXIS II: Deferred.
         AXIS III: G6PD deficient, cervical hyperplasia.
         Recommendation:
         1. Using the American Society of Addiction Medicine (ASAM) patient placement criteria noted above, the patient is appropriate for Inpatient (Level 3) treatment at the earliest possible time. Strongly recommend that this treatment be offered prior to any administrative separation from the Navy.
         2. Patient was educated regarding the importance of remaining abstinent from alcohol. It she chooses to drink prior to treatment, against medical advice, she should do so in extreme moderation.
         3. Attend three Alcoholics Anonymous meetings per week until treatment start.
         The patient appeared motivated regarding the recommended course of treatment. There was no evidence of psychopathology that would preclude participation in alcohol rehabilitation treatment.

030103:  Commanding Officer, Naval Station, Annapolis, recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to drug abuse. Commanding Officer’s comments: “(1) By her actions, SHSA H_(Applicant) has clearly indicated she is not interested in being a good sailor or a good citizen. Her civilian conviction came after possessing a stolen vehicle for almost one year. She tried to downplay this offense by claiming she was mislead by her brother as to the real status of the stolen vehicle. However, SHSA H_(Applicant) did admit that the vehicle had no registration, no insurance and stolen license plates while in her possession, which suggests a higher degree of culpability then she is willing to admit.
         (2) It should also be noted that SHSA H_(Applicant) was essentially on an unauthorized frolic in Tennessee while on house hunting orders to Mayport, Florida, when she was apprehended. Further evidence of her disregard for official orders and duty are shown by her actions after her conviction for joyriding. Upon release from jail, SHSA H_(Applicant) continued her unauthorized absence status and used marijuana instead of immediately returning to the Naval Station.
(3) While on restriction, SHSA H_(Applicant) has continued her misconduct. On 21 December 2002, it was discovered that she committed the offense of breaking restriction by leaving the base to go “night clubbing” and consume alcohol. As a result, the suspension of forfeitures awarded at the earlier NJP has been vacated.
(4) All of these events paint a clear picture of a sailor who is not interested in following the rules and standards of the Naval Service. After a review of the record of proceedings and all its enclosures, I believe that there is sufficient evidence to support the findings and recommendations of the board. Accordingly, I recommend that SHSA H_(Applicant) be discharged as soon as possible, with a characterization of Other Than Honorable ”
030107:  Applicant found physically qualified for separation.

030114:  Superintendent, United States Naval Academy, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to drug abuse.

030207:          Applicant’s DD214: Discharged under other than honorable conditons by reason of misconduct, Separation Code: GKK (Misconduct due to drug abuse).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030207 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).

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 violations of Articles 86 and 112a of the UCMJ and a civil conviction for joyriding. Additionally, the evidence of record shows the Applicant violated Article 92 when she broke restriction on 20021221, an event which was not adjudicated. The Applicant’s violations of Articles 92 and 112a are serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant contends that her discharge was inequitable because it was based on “one isolated incident in 28 months with no adverse action.” 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. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which she was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 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 proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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 . 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 92, failure to obey order/regulation or 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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