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NAVY | DRB | 2006_Navy | ND0600168
Original file (ND0600168.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND06-00168

Applicant’s Request
The application for discharge review was received on 20051101. 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 20060908 . 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:

 “I re quest an upgrade b ecause m y service was f lawless in the US Navy a ccept , f or my use of m arijuana on leave, one t ime . In order for me to function adequately in the civilian world I would need my discharge to be upgraded to honorable I didn’t commit any crime while I was in the Navy other than break the zero tolerance law. Even my commanding officer had good things to say about me. I suffered enough please expedite the upgrade to honorable . ”

Documentation
Only the service record was 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)     19911204 - 19921018               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19921019             Date of Discharge: 19950522

 Length of Service (years, months, days):

         Active: 02 07 04
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 63

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3. 6 (4)              Behavior: 3. 6 (4)                          OTA: 3 . 4

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

921019:  Applicant briefed on Navy's policy of drug and alcohol abuse.

921020:  Retention Warning: Advised of deficiency (Despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre - service civil involvement/drug abuse. The decision is based on the information you provided to the Recruit Quality Assurance Interviewer and if found not factual, this waiver is void and you can be subject to other judicial or administrative proceedings. Public intoxication, 4/92, Abilene TX, Pd $40.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 950119:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received [illegible] , tested positive for THC.
950203:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
          Specification: In that J_ D. R_ (Applicant), MSSN, USN, (SS#), USS DUBUQUE LPD-8, on active duty, did, on or about 25 November 1994, in the vicinity of Lake Charles, LA., wrongfully use marijuana, a controlled substance.
         Award: Forfeiture of $524.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
950213:  Applicant notified of intended recommendation for discharge and , if separation is approved, the characterization of your service may be Other Than Honorable by reason of misconduct due to drug abuse as evidenced by Captain’s Non-Judicial Punishment of 3 February 1995.
950215:  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.
         Applicant stated that he does not object to separation.
950215:          Letter from CO, USS D UBUQUE to BUPERS advising that Applicant is being discharged with a general discharge using local separation authority.

950217:  Medical evaluation by General Practice Clinic, Branch, Medical Clinic, Treasure Island, SF CA:
1.       Subject member examined by a Medical Officer on [this date]
2.       Findings of that examination indicated that SNM does not require hospitalization, that the SNM is not alcohol dependent, that dependency is not physiological, and that SNM is not psychologically dependent.
3.       SNM uses drugs because it is available and use is considered recreational and can be controlled by the individual.
4.       No psychosis
5.       Not suicidal
6.       No related physical illness has been noted.
950217:  Evaluation by Counseling and Assistance Center, Treasure Island. The patient is not chemically dependent, patient is not obese. Medical information is complete and satisfies program requirements. There is no medical problems which should inhibit treatment in the program. No further medical workup is needed unless an emergency arises.

950327:  M essage from BUPERS to USS DUBUQUE advising that BUPERS is separation authority in all cases in involving administrative board procedures for drug abuse.
950405:  M essage from USS DUBUQUE to BUPERS requesting clarification of separation authority.
950405:  Applicant notified of intended recommendation for discharge, if separation is approved, the characterization of service may be Other Than Honorable by reason of misconduct due to drug abuse as evidenced by all drug incidents during current enlistment.
95040 6 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

950411:  Commanding Officer, Transient Personnel Unit, Treasure Island, recommended to Chief Of Naval Personnel, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents during the current enlistment. Commanding Officer’s comments: “MSSA R_ (Applicant) is being reprocessed in accordance with MILPERSMAN Article 3630620 of references (a) and (b). MSSA R_ (Applicant) was originally processed for drug abuse by the USS DUBUQUE (LPD 8). Reference (b) directed reprocessing since the member did not qualify ford a General discharge. MSSA R_ (Applicant) waived his right to an Administrative Board on 6 April 1995. Further retention on active duty is not in the best interest of the member or the Navy. Therefore, it is recommended that MSSA R_ (Applicant) be separated from the naval service with an Other Than Honorable discharge by reason of misconduct.”
950424:  BUPERS message directing USS DUBUQUE to contact Pers 832 to discuss delegation of separation authority.
950515:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.
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 19950522 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 Board presumed regularity in the conduct of governmental affairs (E).
The Applicant states his service was flawless except for his one time use of marijuana. 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. 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. There is credible evidence in the record that the Applicant used illegal drugs. 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 has requested an honorable discharge. 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 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 for fraudulent enlistment and a nonjudicial punishment proceeding for a violation of UCMJ Article 112a (use of drugs). Violations of Article 112a are considered serious offenses for which a punitive discharge is authorized at courts 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 Applicant also indicates that he needs an upgrade to “function adequately in the civilian world.” There is no requirement or law that grants recharacterization solely on the basis of the passage of time, enhancing employment opportunities, or providing educational benefits. 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 good service prior to his misconduct and the difficulties he has faced since his discharge were 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 .

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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