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NAVY | DRB | 2006_Navy | ND0600036
Original file (ND0600036.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND06-00036

Applicant’s Request
The application for discharge review was received on 20051004. 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 designated American Legion as the 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 attached document/letter:

“1. The discharge I received was inequitable because it resulted from an addiction I sought help for, referring myself via normal channels, i.e. my chain of command.”

“2. The discharge I received was inequitable because it was based on an isolated incident in 45 months of service with no additional disciplinary problems or issues.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

 “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the service records reflect that this former member maintained a satisfactory 3.30 overall ITA and earned the NPMR, NRSR. He was awarded NJP on 010913 for VUCMJ, Article 112a and convicted by SCM on 020605 for VUCMJ, Articles 92, 107, 121. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that his discharge be upgraded because he was unfairly charged for his drug use when he was trying to get help, because his violations were isolated incidents in 45 months of service and because of his post service conduct. He has submitted 26 pages of additional documentation attesting to his good post service character, hard work and educational pursuits.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s Statement (4 pgs)
Evaluation Report & Counseling Record (10 pgs)
Aeromedical Evacuation Patient Record (2 pgs)
Character Reference Letter from S_ T. D_, dtd July 8, 2005
Employee Evaluation Report (5 pgs), dtd July 16, 2003
Employee Evaluation Report (7 pgs), dtd July 2004
Employee Evaluation Report (7 pgs), dtd April 2005
Certificate of Appreciation, dtd August 5, 2005
Phi Theta Kappa Certificate, dtd November 14, 2004
National Dean’s List Letter, dtd May 4, 2005
Unofficial Transcript (4 pgs)
Character Reference Letter from C_ G. G_, dtd November 2, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980107 – 19981006               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19981007             Date of Discharge: 20020708

 Length of Service (years, months, days):

         Active: 03 09 02
         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: 85

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (6)              Behavior: 2.7 (7)                 OTA: 2 .83

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Pistol Marksmanship Ribbon, Navy Rifle Sharpshooter Ribbon.


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 :

980107:  United States Navy Alcohol and Drug Screening Certificate.

 010829:  Report and Disposition of Offenses: Violation of UCMJ, Article 112a, Wrongful use, possession, etc., of controlled substance: In that, MM3(SU) M_ C_ (Applicant) did onboard USS HARTFORD (SSN 768) on or about 010827, wrongfully use Ecstasy.

 010904:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 010830, tested negative.

UNDATED:         Addendum to Report Chit 010829: Charge I, Article 107, False Official Statement: In that MM3 (SU) M_ C_, did, on board USS HARTFORD (SSN 768), on or about 010829, with intent to deceive, sign an official letter, to wit: submit a letter to his chain of command admitting to drug use, which was false based on the fact of his urinalysis which was returned with negative results.

010913:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession of a controlled substance.
         Award: Forfeiture of $711.00 pay per month for 2 months, restriction for 45 days, reduction to E-3. No indication of appeal in the record.
020531:  Pretrial agreement: Applicant agreed to plea guilty at a Summary Court-Martial to all charges currently pending against him. Any lawful punishment authorized at a Summary Court-Martial may be approved as adjudged. Any confinement awarded including restrict and or brig time will be suspended for a period of 6 months.

020605:  Summary Court-Martial.
         Violation of the UCMJ, Articles 92, 107, and 121.
         Finding: to Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of 2/3 pay per month for 1 month, confinement for 30 days, reduced to E-1.
         CA action 000000: Not found in record.

020618:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct commission of a serious offense and misconduct drug abuse.

020618:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
020619:  Commanding Officer, Submarine Squadron Support Unit, New London recommended discharge under other than honorable conditions by reason of misconduct commission of a serious offense and misconduct drug abuse. Commanding Officer’s comments: “Due to this member’s use of illicit drugs while on active duty and his guilty verdict from summary court-martial I recommend he be discharged from the naval service with an other than honorable characterization of service.”

020625:  GCMCA, COMSUBGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020708 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).

 The Applicant contends that his discharge is inequitable because he self-referred via his chain of command. Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation. Regulations stipulate that self-referrals who screen as drug dependent shall be exempt from any disciplinary action but shall be processed for administrative separation. Self-referrals who screen as not drug dependent will not be exempt from disciplinary action and shall be processed for administrative separation. The evidence of records shows that the Applicant admitted to wrongful use of a controlled substance, but his command concluded that he was not a valid self-referral since his urinalysis result was negative. The Applicant received nonjudicial punishment on 20010913 for violation of UCMJ Article 112a Wrongful use of controlled substance (ecstasy). Notwithstanding, the Applicant’s self-referral status, t he Board noted that the Applicant’s misconduct was aggravated by a Summary Court-Martial conviction for violation of UCMJ Articles 92, 107, and 121, which are all serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial. Evidence of such misconduct may be used to characterize a member’s discharge under other than honorable conditions. This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service. The Applicant’s discharge was equitably characterized. Relief denied.

Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. There is clear evidence in the record that the Applicant used illegal drugs and that the Applicant was convicted at Summary Court-Martial for three serious offenses. Separation under these conditions generally results in characterization of service under other than honorable conditions. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy. Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued. Relief denied.
While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted two character references, three employee evaluation reports, a certificate of appreciation, and academic credentials for consideration. The Applicant’s efforts need to be more encompassing to include certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the discharge at that time. 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. 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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