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NAVY | DRB | 2006_Navy | ND0600109
Original file (ND0600109.rtf) Auto-classification: Denied


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

ex-HMC, USN
Docket No. ND06-00109

Applicant’s Request
The application for discharge review was received on 20051017. 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 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:

“Please update my DD 214 to honorable.”


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character Reference ltr from M_ A. I_, dtd October 2, 2005
Character Reference ltr from L_ G_, RNC, BSN, M. Ed dtd September 29, 2005
Criminal Record Check from State of North Carolina dtd September 6, 2005
Enclosure ltr from W_ S. M_ North Carolina Department of Administration dtd October 7, 2005
Letter from L. W. H_, Department of Veterans Affairs dtd December 6, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19821028 – 19830221               COG
         Active: USN                        19830222 – 19880320               HON
 Active: USN                        19880321 – 19910919               HON
         Active: USN                        19910920 – 19960318               HON

 Period of Service Under Review :
Date of Enlistment: 19960319             Date of Discharge: 20000218

 Length of Service (years, months, days):

         Active: 03 11 30
         Inactive: None

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

 Age at Entry: 36

Years Contracted: 3 (24 month extension)

 Education Level: 14                                 AFQT: 87

 Highest Rate: HMC

 Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.
Performance: 3.6 (3)                       Behavior: 1.0 (3)                

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal (1), Sea Service Deployment Ribbon (3), Meritorious Unit Commendation (3) Fourth Good Medal for period ending 98FEB21, Armed Forces Expeditionary Medal (3), Joint Meritorious Unit Commendation (2) Humanitarian Service Medal (2), Expert Rifle M16, Expert Pistol 9MM, Navy Unit Commendation (2), Navy Fleet Marine Force Ribbon, Navy & Marine Corp Commendation 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 :

960319:  Reenlisted this date for a term of 3 years.
980817:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 980910, tested positive for [THC].

 980910:  Clinical Director, Alcohol Treatment Facility, Naval Hospital evaluation report for substance abuse indicate applicant was evaluated by a credentialed provider as a result of a command referral. The diagnosis was drug abuse (isolated incident).

981005:  NJP for violation of UCMJ, Article 112a: In that SNM while attached to 2D Reconnaissance Battalion, 2D MARDIV, did, at an unknown location, between on or about 980701 and on or about 980817, wrongfully use marijuana.
 Award: Forfeiture of $1118.00 pay for 2 months. No indication of appeal in the record.
990125:  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.
990204:  Commanding Officer, 2d Reconnaissance Battalion, to Commanding General, II Marine Expeditionary Force VIA Commanding General, 2d Marine Division recommended applicant be retained.

990608:  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.

990608:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

990608:  Commanding Officer, Headquarters and Service Battalion, II Marine Expeditionary Force recommended discharge under other than honorable conditions by reason of drug abuse pursuant to the provisions of paragraph 6210.5 of the reference.
990609:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct based on drug abuse. By a vote of 2 to 1 the board recommends retention.
990716:  SJA review determined the case sufficient in law and fact.

990723:  GCMCA, Commanding General, II Marine Expeditionary Force directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct drug abuse.
000120:  NAVDRUGLAB message reported Applicant’s urine sample tested positive for [THC].
000202:   NJP for violation of Article 112a, wrongful use of a controlled substance
[THC] Award: Forfeiture of $641.00 pay for 2 months. No indication of
appeal in the record. (Extracted from administrative separation letter dated
14 Feb 2000)
000202:  Applicant re- 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.

000202:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

000203:  Commanding Officer, Headquarters Group, II Marine Expeditionary Force recommended Applicant discharged under other than honorable conditions by reason of drug abuse. The factual basis for this recommendation was his use of marijuana as evidenced by enclosure (5). Chief S_ (Applicant) has previously received Nonjudicial Punishment in October 1998 for violation of Article 112a, drug abuse. His initial Administrative Separation package had been returned from SECNAV for correction. A new Board was convened and was awaiting docket at the Legal Services Support Section. Based on Chief’s S_(Applicant) record and enclosure (2) through (5), it is my opinion that an other than honorable discharge is warranted. I am against retention of Chief S_ (Applicant). Chief S_ (Applicant) has been provided written advice concerning the Purpose and Scope of the Navy Discharge Review Board and the Board for Correction of Naval Records. He has waived his right to request a hearing before an Administrative Discharge Board.




000208:  Clinical Psychologist substance abuse evaluation indicates drug abuse (isolated incident). No treatment at this time, found psychologically fit for full duty and returned to the same, recommended SNM be processed for Administrative Separation per MCO P1900.16.

000214:  GCMCA, Commanding General, II Marine Expeditionary Force 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 20000218 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).

The Applicant requests an upgrade to his discharge characterization to honorable.
 The Board found that the Applicant's discharge was proper and equitable as there is credible evidence in his service record of illegal drug use. The evidence of record shows two nonjudicial punishment (NJP) for violations of UCMJ Article 112a (wrongful use of a controlled substance) on 981005 and another NJP on 000202. Violations of Article 112a are considered serious offenses and typically warrant punitive discharges if adjudged at a special or general court-martial. The evidence of record does not show that the Applicant should not be held accountable for his actions. 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. Relief on this basis is denied.

The following is provided for the edification of the Applicant. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. 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. 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 24, effective 20 May 99 until 26 March 2000, 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 (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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