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NAVY | DRB | 2006_Navy | ND0600037
Original file (ND0600037.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. ND06-00037

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 general (under honorable conditions). 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 20060810. 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:

“I am attaching VA letter dated 9-13-05. Please note what they used to make their decision that i am entitle to benefits from them. I was not counsel in the military service concerning drug abuse and the punishment for the first offense was to harsh, therefore I feel this is justification for an upgrade.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Department of Veterans Affairs Decision Letter dtd September 13, 2005 (2 pgs)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000630 – 20010312               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010313             Date of Discharge: 20040610

 Length of Service (years, months, days):

         Active: 03 02 29 [Does not exclude lost time.]
         Inactive: None

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

 Age at Entry: 19

Years Contracted: 4

Education Level: NFIR                               AFQT: Unreadable

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)              Behavior: 2.0 (1)                 OTA: 3. 00

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, Navy ”E” Ribbon, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Navy Unit Commendation.


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 :

031025:  NJP for violation of UCMJ, Article 86: In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, did, at or about 0001, 031008, without authority, absent himself for his unit, to wit USS NIMITZ, located at Changi Naval Base, Singapore, and did remain so absent until at or about 0105, 031008.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

031025:  Retention Warning: Advised of deficiency (Non-judicial punishment awarded for violation of the UCMJ, Article 86, unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
040120:  Applicant tested positive for amphetamine, to be confirmed at LAB.
040311:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: (4 specs), Unauthorized absence; Article 92: (2 specs) Disobeying a lawful order; Article 108: Wrongful damage of military property.

040311:  Charges referred to summary court-martial.

 040316:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86: (4 specs)
         Specification 1: In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, did, on or about 040126, without authority, absent himself for his unit, to wit: USS NIMITZ, located Naval Air Station North Island, San Diego, California, and did remain so absent until on or about 040205. Plea: Guilty. Findings: Guilty.
         Specification 2: In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, did, on board USS NIMITZ, located Naval Air Station North Island, San Diego, California, on or about 040208, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Pre-Trial Restriction Personnel 0600 Muster. Plea: Guilty. Findings: Guilty.
 Specification 3 : In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, did, on board USS NIMITZ, located Naval Air Station North Island, San Diego, California, on or about 040212, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Pre-Trial Restriction Personnel 0600 Muster. Plea : Guilty. Findings : Guilty.
 Specification 4 : In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, did, on board USS NIMITZ, located Naval Air Station North Island, San Diego, California, on or about 040214, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Pre-Trial Restriction Personnel 0600 Muster. Plea : Guilty. Findings : Guilty.
Charge II: violation of the UCMJ, Article 92: (2 specs),
 Specification 1 : In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, having knowledge of a lawful order issued by Commanding Officer, to wit: Pre-Trial Restriction Order, dated 040205, an order which it was his duty to obey, did, on board USS NIMITZ, located Naval Air Station North Island, San Diego, California, on or about 040216, fail to obey the same by wrongfully leaving his rack after Taps. Plea : Guilty. Findings : Guilty.
 Specification 2 : In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, having knowledge of a lawful order issued by Commanding Officer, to wit: Pre-Trial Restriction Order, dated 040205, an order which it was his duty to obey, did, on board USS NIMITZ, located Naval Air Station North Island, San Diego, California, on or about 040228, fail to obey the same by wrongfully leaving his rack after Taps. Plea : Guilty. Findings : Guilty.
Charge III: violation of the UCMJ, Article 108,
 Specification : In that Fireman D_ R. D_, U.S. Navy, USS NIMITZ, on active duty, did, on board USS NIMITZ, located Naval Air Station North Island, San Diego, California, on or about 040226, without proper authority, willfully damage by wrongfully opening and expending two Emergency Escape Breathing Devices, military property of the United States, the amount of said damage being in the sum of about $580.00. Plea : Guilty. Findings : Guilty.
         Sentence: Forfeiture of $621.00 pay per month for 1 month, reduced to E-1, confinement for 15 days.
          CA action 040330: Sentence approved and ordered executed.
        
040405:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

040405:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040420:  Commanding Officer, USS NIMITZ (CVN 68) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse. Commanding Officer’s comments: “Fireman Recruit D_ (Applicant) is no longer fit for naval service. He has developed an ongoing pattern of misconduct. His episodes of misconduct include two incidents of unauthorized absence from his unit and destruction of government property. A Competency for Duty exam on 040120 was performed on Fireman Recruit D_ (Applicant), due to him being lethargic. The urine drug screen returned with positive results for use of amphetamine. It is clear that Fireman Recruit D_ (Applicant) has no regard for the Navy’s policies or regulations. I most strongly recommend he be separated with a characterization of Other Than Honorable Conditions.”

040421:  GCMCA, Commander, Cruiser-Destroyer Group FIVE 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 in absentia on 20040610 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).

 Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation. Characterization of service under other than honorable conditions 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 service records document that, on 20040120, the Applicant’s urine sample tested positive for amphetamine. The Board also noted that this misconduct was further aggravated by nonjudicial punishments proceedings on 20031025 for violation of UCMJ Article 86 (Unauthorized absence) and a summary court-martial conviction on 20040316 for violation of 4 specifications of Article 86 (Unauthorized absence); 2 specifications of Article 92 (Failure to obey order); and Article 108 (Damage of military property). 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. Relief denied.

The Applicant contends that his discharge was improper because he was not counseled concerning drug abuse. By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse. A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his urine sample testing positive for amphetamine on 20040120. The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to drug abuse, commission of a serious offense, and pattern of misconduct on 20040405 with a least favorable characterization of under other than honorable conditions. On 20040420, the Commanding Officer, USS NIMITZ, recommended to Commander, Cruiser-Destroyer Group FIVE, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse, commission of a serious offense, and pattern of misconduct. On 20040421, the Commander, Cruise-Destroyer Group FIVE, directed the Applicant’s discharge. Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations. Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief. Thus, the Board concluded that relief is not warranted.

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), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, 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) and Article 108 (Damage of military property).

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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