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NAVY | DRB | 2006_Navy | ND0600117
Original file (ND0600117.rtf) Auto-classification: Denied


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

ex-SHSA, USN
Docket No. ND06-00117

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 did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060807. 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 General (Under 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 was a Petty Officer 3 rd Class and had an exemplary record before I messed up. My Commanding Officer, Commander S_ L_, and all the ships officers voted to retain me in the Navy after the incident. After I was discharged from the Navy, I went to a psychiatrist to try to understand my behavior. I was diagnosed as “Bi-polar” and “ADHD” and am currently taking medications for these conditions. I probably should have never been in the Navy in the first place. However, up until I took Ecstasy at a Japanese nightclub one night and got caught, I served with honor and was told I was on the “fast track”. I do not feel that I should have to go through the rest of my life with this stigma on my military record. I am trying to go to college and am even having problems getting student loans because of this. My recruiter was aware of the fact that I had taken Prozac for several months as a teenager. He said, “I didn’t hear that, O.K?”.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from A_ C_, MD Hermitage Psychiatric Group, PC dtd September 9, 2005
Letter from S_ L. T_, Ph.D. Hermitage Psychiatric Group, PC dtd September 9, 2005


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000816 – 20010628               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010629             Date of Discharge: 20031113

 Length of Service (years, months, days):

         Active: 02 04 15
         Inactive: None

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

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (3)              Behavior: 2.0 (3)                 OTA: 2 .90
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):

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

010623:  Pre-service waiver for chart C offense (possession of marijuana). Additional pre-service waiver for drug use (marijuana).

030331:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 030324 tested positive for MDMA.

 030403:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $724.49 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
030403:  NAVPERS 1070/613 Entry: Advised of deficiency (CO’s NJP held 3 April 2003. Violation of the UMCJ Article(s) 112a-Wrongful use of controlled substance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030414:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable by reason of misconduct drug abuse.

030414:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
030424:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct- drug abuse and recommended for retention.









030706:  Commanding Officer, USS VINCENNES (CG-49) recommendation for retention from the Administrative Separation Board by reason of misconduct drug abuse, illegal or wrongful use. Commanding Officer’s comments: “Although I concur with the fact that Seaman M_ (Applicant) has performed at a superior level and continues to perform exceptional to date, I disagree with the administrative boards’ findings of recommending retention. In order to maintain a consistent policy of zero tolerance I must recommend separation in this case. SN M_ (Applicant) is an outstanding Sailor whose performance would otherwise merit a second chance, however this offense is not consistent with Navy policy and our Core Values.”

030804:  Commander, Destroyer Squadron FIFTEEN to Commander, Navy Personnel Command (PERS 832), via Commander, Carrier Group FIVE recommending approval of the Applicant’s separation by reason of misconduct – drug abuse. Commander’s comments: “ I have reviewed the contents of the attached package. Strongly recommend separation. Contrary to the Board’s recommendation SHSA M_ (Applicant) decision to purchase and take an ecstasy pill in a bar makes him just the kind of Sailor the Navy does not need.”

030808:  Commander, Carrier Group FIVE to the Secretary of the Navy recommending approval of the finding of misconduct due to drug abuse and separation with a General discharge. Commander’s comments: “ I specifically recommend that the Secretary of Navy disapprove the administrative board’s recommendation for retention.”

030827:  Commander, Navy Personnel Command to Assistant Secretary of the Navy (Manpower and Reserve Affairs) recommends that the Applicant be separated with a General (Under Honorable Conditions) discharge. The case is forwarded recommending overturn of the administrative board’s recommendation for retention.

031016:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Commander, Navy Personnel Command recommendation that applicant be discharged with a general (under honorable conditions) by reason of drug abuse.

031022:  CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct drug abuse.

031110:  Branch Medical Clinic, Naval Station San Diego. Applicant’s medical history reviewed and found no significant changes in his medical history since his last physical (Aug 00). Applicant examined and found physically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031113 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider the Applicant’s discharge proper and equitable. The Applicant states that his Commanding Officer and the ship’s officer’s voted to retain him. On 20030424, an administrative discharge board found by unanimous vote that the Applicant had committed misconduct-drug abuse and recommended that the Applicant be retained. On 20030706, the Applicant’s Commanding Officer, (CO, USS VINCENNES), forwarded a letter to the Commander, Navy Personnel Command, wherein he stated that he disagreed with the administrative board’s finding of the recommendation for retention; the CO, USS VINCENNES recommended that the Applicant be separated. The Commander, Destroyer Group FIFTEEN and the Commander, Carrier Group FIVE, concurred with the CO, USS VINCENNES recommendation that the Applicant be separated. On 20030827, the Commander, Navy Personnel Command (CNPC) recommended to the Assistant Secretary of the Navy, Manpower and Reserve Affairs (ASN M&RA) that the administrative discharge board’s recommendation for retention be overturned. On 20031016, the ASN M&RA approved the CNPC recommendation that Applicant be discharged with a general (under honorable conditions) by reason of drug abuse. According to the Naval Military Personnel Manual (MILPERSMAN) 1910-702, if an administrative board finds the member committed the reason for processing and recommends retention, but the convening authority or GCMCA recommends separation, the case is to be forwarded to CNPC, with written rationale, for possible forwarding to the Secretary of the Navy for final action. In the Applicant’s case, the ASN M&RA, acting as the separation authority, decided that the Applicant should be separated, overturning the administrative discharge board’s recommendation for retention. Accordingly, relief on this basis is not warranted.










The Applicant states that since his discharge, he has been diagnosed with bi-polar depression and ADHD and that he “probably should have never been in the Navy in the first place.” On 20000816, that Applicant underwent his enlistment medical examination. At that time the Applicant stated that he was in good health and that he had not experienced depression, excessive worry, loss of memory, or nervous trouble of any sort. On 20031110, the Applicant underwent his separation physical and competent medical authority found him to be medically qualified for separation. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board found that the Applicant’s characterization of discharge was appropriate and that his evidence of a post-service diagnosis of bipolar depression and ADHD were found not to mitigate the conduct for which he was discharged. Relief denied.

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. A general 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. The Applicant’s service was marred by nonjudicial punishment proceedings for violation of Article112a (wrongful use of controlled substances) of the UCMJ. Violation of UCMJ Article 112a is considered a serious offense, for which a punitive discharge is authorized. 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 is not warranted.

The Applicant states that he was an exemplary Sailor prior to committing the violation of UCMJ Article 112a. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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, possession, etc, of controlled substances.

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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