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NAVY | DRB | 2006_Navy | ND0600161
Original file (ND0600161.rtf) Auto-classification: Denied


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

ex-MM3, USN
Docket No. ND06-00161

Applicant’s Request
The application for discharge review was received on 20051103. 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 20060908 . After a thorough review of the available 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 asking for a review and upgrade of my discharge because I believe it was based on an isolated incident in 49 months of service.”

 Documentation
Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990123 – 19990405               COG
          Active: USN                        19990406 – 200 1 0 408                HON
         
Period of Service Under Review :
Date of Enlistment: 200 1 040 9              Date of Discharge: 20030626
Length of Service (years, months, days):

          Active: 0 2 02 18
         Inactive: None

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

 Age at Entry: 1 9

Years Contracted: 6

 Education Level: 12                                 AFQT: 89

 Highest Rate: MM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (3)              Behavior: 2.7 (3)                          OTA: 3 . 1

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sharpshooter Pistol, Expert Rifle, 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 :

0 1 040 9 :  Reenlisted this date for a term of 6 years.

011227:  NJP for violation of UCMJ, Article 134: Adultery .
         Specification: On or about 3 November 2001, wrongfully have sexual intercourse with a woman, not his wife.
 Violation of UCMJ, Article 92: Violate a lawful order, to wit: Com Article 5354.1A, Fraternization policy.
          Award: Forfeiture of $200.00 pay per month for 2 months, reduction to E-4 (suspended for 2 months) and an oral reprimand . No indication of appeal in the record.

 011227:  Retention Warning: Advised of deficiency (Article 134: Adultery, Article 92: Failure to obey a an Order or Regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
03XX07:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030502, tested positive for THC.
030519:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
          Specification: In that Machinist’s Mate Second Class M_ C. K_ (Applicant), U. S. Navy, USS ENTERPRISE, on active duty, on or about 1830, 10 April 2003, without authority, go from his appointed place of duty, to wit: Engineering Reactor Mechanical Division.
          Violation of UCMJ, Article 112a: Wrongful use of controlled substance.
 Specification: In that Machinist’s Mate Second Class M_ C. K_ (Applicant), U. S. Navy, USS ENTERPRISE, on active duty, located at Norfolk Naval Shipyard, Portsmouth, Virginia, did, at or near the Hampton Roads area on or about 10 April 2003, wrongfully use marijuana.
          Award: Forfeiture of $829.00 pay per month for 2 months, restriction and extra duty for 45 days (15 days suspended for six months), reduction to E-4. No indication of appeal in the record.
030603:  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 a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse.
030603:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030616:  Commanding Officer, USS ENTERPRISE (CVN 65), recommended to Commander, Cruiser-Destroyer Group 12, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Commanding Officer’s comments: “On 19 May 2003, MM3 K_ (Applicant) was found guilty at Captain’s Mast of wrongful use of marijuana and going from his appointed place of duty. On 3 June 2003, he elected to waive his right to an administrative discharge board. MM3 K_ (Applicant)’s misconduct indicates he does not have potential for further naval service. Accordingly, I recommend that MM3 K_ (Applicant) be discharged from the naval service for misconduct due to drug abuse. I further recommend that his characterization of service be Other than Honorable.”

 030626:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030626 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).

The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity. Specifically, the Board presumed that the Applicant’s discharge was directed by proper authority.

The Applicant states his discharge was based on one isolated incident in “49 months.”
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. 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. 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. The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, 92, 112a and 134 of the UCMJ. The Applicant’s violations of Articles 92, 112a and 134 of the UCMJ are serious offenses, for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general 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. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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. 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 92, disobey order/regulation, Article 112a, wrongful use of a controlled substance or Article 134, adultery.

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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