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NAVY | DRB | 2006_Navy | ND0600091
Original file (ND0600091.rtf) Auto-classification: Denied


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

ex-ITSR, USN
Docket No. ND06-00091

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 or 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 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 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:

“Requesting an upgrade to receive benefits i.e. medical, school, etc.”

“To whom this concern,
I am writing this letter in hopes of getting an upgrade. I am in need of this upgrade in order to receive assistance from the Hoosier Veterans Association. The reason I am in need of their assistance is I have two children & have just moved to Indiana from New Orleans. Any assistance would be truly appreciated.

Sincerely Grateful,
[Signed] S_ M. D_ (Applicant)”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Department of Veterans Affairs not dated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19991023 – 20000619               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000620             Date of Discharge: 20020801

 Length of Service (years, months, days):

         Active: 02 01 12 (does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 14
         Confinement:              none

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 12                                 AFQT: 50

 Highest Rate: ITSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (2)              Behavior: 2.0 (2)                 OTA: 2.17

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 :

020423:  NJP for violation of UCMJ, Article 86: (5 specs) Unauthorized absence.
 Specification 1: Did, on or about 0700, hours, 3 April 2002, without authority, fail to go at the time prescribed to her place of duty, to wit: Message Center Watch.
Specification 2: Did, on or about 0700, hours, 4 April 2002, without authority, fail to go at the time prescribed to her place of duty, to wit: Message Center Watch.
Specification 3: Did, on or about 0700, hours, 14 April 2002, without authority, fail to go at the time prescribed to her place of duty, to wit: Force Protection Guard Duty.
Specification 4: Did, on or about 0615, hours, 17 April 2002, without authority, fail to go at the time prescribed to her place of duty, to wit: 0615 to 0730 Command Fitness Training.
Specification 5: Did, on or about 0830, hours, 17 April 2002, without authority, fail to go at the time prescribed to her place of duty at which she was required to be, to wit: First Lieutenant Division, NCTC, Guam, located at U.S. Naval Computer and Telecommunication Station, Guam, and did remain so absent until on or about 0835, 17 April 2002.
Violation of UCMJ, Article 92: Having knowledge of a order which was typed on a medication bottle for sedatives, to wit: to take one pill before bedtime, or words to that effect, an order which was her duty to obey, did, at or near U.S. Naval Computer and Telecommunication Station, Guam, on or about 3 April 2002, fail to obey the same by wrongfully taking more that one pill at a time as prescribed.
Violation of UCMJ, Article 107: On or about 3 April 2002 with intent to deceive, made altercations to medical form SF558, and official document, to wit: Naval Hospital Guam Emergency Care and Treatment Form, which altercations indicated that the disposition was for 72 hours Sick In Quarters, which was totally false in that she was not placed in such status.
Violation of UCMJ, Article 115: On or about 3 April 2002, for the purpose of avoiding her duty as Message Center Operator, feign an illness by reporting symptoms of sickness to the Emergency Room Medical Personnel.
         Award: Forfeiture of $619.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

Undated:         Involvement with civil authorities: An arrest warrant was issued by a local court for her failure to appear in a speeding and reckless driving case. Applicant was fined $560.00, of which the Applicant has paid $280.00 and as of 6 June 2002 had not paid the remainder of the fine. Applicant's leading Chief Petty Officer stated that the Applicant has until 31 July 2002 to pay the remainder of the fine [Extracted from CO’s message].

 020604:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 020528 tested positive for THC.
020611:  NJP for violation of UCMJ, Article 86 (3 specs): Absent without leave.
 Specification 1: Did, on or about 31 May 2002, without authority, failed to go at the time prescribed to her appointed place of duty, to wit: 0650 Command Personnel Inspection.        
Specification 2: Did, on or about 7 June 2002, without authority, failed to go at the time prescribed to her appointed place of duty, to wit: 0615 Physical Fitness Training.
Specification 3: Did, on or about 7 June 2002, without authority, absent herself from her organization, to wit: 0730 division muster, located at U.S. Navy Computer and Telecommunication Station, Guam, and did remain so absent until on or about 0935, 7 June 2002.
Violation of UCMJ, Article 112a: Did, on or about 22 April 2002, wrongfully use marijuana while assigned at Naval Computer and Telecommunication Station, to wit: U.S. Naval Computer and Telecommunication Station, Guam.
          Award: 60 days restriction, reduction to E-1. No indication of appeal in the record.
020612:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of serious offense.

020612:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

020617:  Applicant counseled concerning the right to drug and alcohol treatment should she be found to be drug and alcohol dependent. The Applicant accepted the screening and any treatment offered.
020626:  Counseling & Assistance Center, USNH Guam Alcohol and Drug Screening Report: Applicant does not meet criteria for substance dependence or abuse. Recommended for prevent or Impact classes.
020712:  Letter from Applicant (witnessed by attorney) indicating that she had decided to waive her right to an Administrative Separation Board after conferring with counsel. Attached to her letter was a corrected copy of the notice showing waiver of the board.

020716:  Commanding Officer, U.S. Naval Computer and Telecommunications Station, Guam recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of serious offense. Commanding Officer’s comments: “Member meets the criteria for separation under the provision of MILPERSMAN 1910-142, separation of enlisted personnel for Misconduct, Commission of Serious Offenses; and MILPERSMAN 1910-146, Misconduct Due to Drug Abuse. Seaman Recruit K_ (Applicant) appeared before me at mast on 23 April 2002 for violating UCMJ Article 86, 92, 107 and 115. I found that she had committed the offenses and decided to process her for separation pursuant to MILPERSMAN 1910-142. Seaman Recruit K_ (Applicant) requested that she be given the duration of her restriction to show that she could conform to Navy standards. She failed to show that she was amenable to rehabilitation and I directed continued separation processing. Before her processing could be completed, the command become aware of a random urinalysis test in which she tested positive for drug abuse. Seaman Recruit K_ (Applicant) was taken to mast on 11 June 2002 for violating UCMJ Articles 86 and 112a and awarded reduction in rate and 60 days restriction. She was reprocessed for all known reasons and elected an administrative board which was scheduled for 2 July 2002. Due to unforeseen circumstances the board had to be rescheduled for 10 July 2002. Once again unforeseen circumstances forced the board to be rescheduled. However, on 11 July 2002, ITSR K_ (Applicant) decided that she wanted to waive her administrative board. She was promptly scheduled to meet with her attorney, Lieutenant R_, on 12 July 2002 to be counseled on the consequences of her decision. She returned to the command and signed the letter presented in enclosure (1). Information Systems Technician Seaman Recruit S_ M. K_ (Applicant) has earned an Other Than Honorable Discharge. She has been a disciplinary problem and an administrative burden to his command.”

020719:  GCMCA, Commander, U.S. Naval Forces Marianas 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 20020801 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).

When 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 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, involvement with civilian authorities and two nonjudicial punishment proceedings for multiple violations of Article 86, and violations of Articles 92, 107, 112a, and 115 of the UCMJ. Violations of UCMJ Article 92, 107, 112a, and 115 are considered serious offenses, for which a punitive discharge is authorized. 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.

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 her conduct or that she should not be held accountable for her actions. Relief denied.

Regarding the Applicant's request for an upgrade to obtain benefits, t he Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief will not be granted.

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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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, Articles 112a, use of marijuana, Article 107 False official statements, and Article 115, malingering.
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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