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NAVY | DRB | 2006_Navy | ND0600084
Original file (ND0600084.rtf) Auto-classification: Denied


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

ex-AGAN, USN
Docket No. ND06-00084

Applicant’s Request
The application for discharge review was received on 20051020. 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 20060726. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I feel that my military record and accomplishments should hold more weight than the reason I was discharged and also the type of discharge I received does not fit the type of sailor I was.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (member 1 copy)
Applicant’s DD Form 214


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000427 – 20000525               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000526             Date of Discharge: 20041015

 Length of Service (years, months, days):

         Active: 04 04 20
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4 (12 month extension)

 Education Level: 11 (GED)                                   AFQT: 79

 Highest Rate: AG3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon.
* Not Available


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 :

040618:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, marijuana.
         Award: Forfeiture of $793.00 pay per month for 2 months (suspended for 6 months), extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
040621:  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 as evidenced by NAVDRUGLAB message DTG 011925Z JUN 04 for violation of UCMJ Article 112a (use of a controlled substance).

040621:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

040716   Received a civilian DUI, BAC .09 (extracted from alcohol treatment documentation)

040716:  Forfeiture of pay awarded at NJP on 040618 vacated due to continued misconduct.

040802   Substance Abuse Screening conducted by Licensed Indpendent Practictioner, Substance Abuse Rehabilitation Program (SARP), Naval Medical Center San Diego. Applicant has been diagnosed with a substance use disorder. Recommended: Applicant be treated in an Outpatient Program.
040806:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

 040830   Applicant began 2-week outpatient substance abuse treatment at Naval Medical Center San Diego.

040903:  Commanding Officer, Naval Pacific Meteorology and Oceanography Center, San Diego recommended discharge with a general (under honorable conditions) by reason of misconduct drug abuse. Commanding Officer’s comments: “I support the findings of the Administrative Board (enclosure (7)) with the exception as to the type of discharge recommended. Due to AGAN D_’s (Applicant) outstanding record of service, the malicious actions of his girlfriend (as admitted in a sworn statement), and the mitigating circumstances surrounding his personal life, I believe the punitive nature of an Other Than Honorable discharge is not warranted and recommend he be separated from naval service with a General Discharge.”

040910   Applicant completed substance abuse treatment. Diagnosed alcohol abuse, nicotine dependent. Recommended weekly mtgs with DAPA, weekly group care mtgs, attend anger management class. The Applicant's participation was satisfactory, prognosis was rated fair.

040929: 

GCMCA, Commander Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.


Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

 The Applicant was discharged on 20041015 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

In the Applicant’s case, he expressed that his military record and accomplishments should carry more weight than his misconduct, and that his discharge did not reflect the type of sailor he was. The Board disagreed with that assessment. 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. An 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. A civilian DUI and a nonjudicial punishment proceeding for use of marijuana (a violation of UCMJ Article 112a) marred the Applicant's service. Article 112a of the UCMJ is a serious offense for which a punitive discharge is authorized at court martial. 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.

Certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. There is credible evidence in the record that the Applicant used illegal drugs. 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 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 is 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. 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 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 112a, 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 .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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