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NAVY | DRB | 2006_Navy | ND0600208
Original file (ND0600208.rtf) Auto-classification: Denied


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

ex-SKSN, USN
Docket No. ND06-00208

Applicant’s Request
The application for discharge review was received on 20051114. 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 20060 9 26 . 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:

“After 6+ years of outstanding service, I feel that I am deserving of this upgrade in status. A review of my service record will show that my time in the Navy was well served, and that much pride was given in my service. Although I am sorry for my actions and understand why my release was necessary under the 0 Tolerance rule, I also find it very unfair that the same rule does not apply to alcohol. Never did I go to work under the influence, never was my service affected by a drug, never did I stand in ranks smelling of a drug, yet I witnessed many times other members who did come to work, smelling of and suffering the effects of alcohol. I’ve witnessed many DUI’s some even multiple, with no action take by the Navy. I think its time the Navy review the 0 tolerance rule, and add the drug of alcohol to it!”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Extracts from Applicant’s Service Record (45 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980529 - 19980720      COG
         Active: USN      19980721 – 20011128      HON
Period of Service Under Review :
Date of Enlistment: 20011129             Date of Discharge: 20050112

 Length of Service (years, months, days):

         Active: 03 01 14
         Inactive: None

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

 Age at Entry: 32

Years Contracted: 4

Education Level: 1 4                AFQT: 53
Highest Rate: SK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 5.0 (5)              Behavior: 2.6 (5)                          OTA: 3 .69

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E” Ribbon, Sea Service Deployment Ribbon (2), Armed Forces Expeditionary Medal, Humanitarian Service Medal, Good Conduct Medal, National Defense Service Medal, Navy and Marine Corps Achievement 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 :

011129:  Reenlisted this date for a term of 4 years.

041006:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040827, tested positive for THC.

 041014:  NJP for violation of UCMJ, Article 112Aa: Wrongful use, possession of controlled substance.
Specification: In that Store Keeper Second Class M_ L. E_ (Applicant), U.S. Navy, Construction Battalion Maintenance Unit 303, Detachment Bangor, on active duty, did, at or near Silverdale, Washington, on or about 23 September 2004, wrongfully use marijuana (THC).
Award: Forfeiture of $4 81.11 pay per month for 1 month , extra duty for 14 days (7 days suspended), reduction to E-4. No indication of appeal in the record.
041014:  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.

 041018 :  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.

 041027   NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 041018, tested positive for THC.
041102:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession of controlled substance.
 Specification: In that Store Keeper Third Class M_ L. E_ (Applicant), U.S. Navy, on active duty with Construction Battalion Maintenance Unit 418, Bangor, was at Naval Base Kitsap, Bangor Annex, Silverdale, Washington, on or about 1100, 12 October 2004, found to have tested positive for THC.
          Award: Restriction and extra duty for 14 days, reduction to E-3. No indication of appeal in the record.
041102:  Officer in Charge, Construction Battalion 418, recommended to the Commander, First Naval Construction Division, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “Prior to these two incidents, SKSN E_ (Applicant) has been a top notch Sailor possessing both outstanding character and relentless drive in every endeavor. I would have taken her anyplace, anytime, anywhere. However, member has had two positive urinalysis returns over a 20-days period. At her first Mast case, she indicated her initial positive was a single, albeit very serious, judgmental error. During this first Mast case, she indicated very clearly that she had made this single error in ingesting THC laced cookie during the course of a party. She indicated no other use and in fact denied such use outside of this single incident. This I believed. What I now know, based on a second positive urine sample, provided 20 days after her initial positive is that SKSN E_ (Applicant) used THC on at least two separate occasions during this 20 day timeframe. She admitted to the second use only after being taken to OIC Mast after the results her second urine sample came back positive. Outstanding work ethic not withstanding, I cannot explain away her drug use and attempt to cove r it with an outstanding service record. I respectfully request that her type of discharge be under Other Than Honorable (OTH) conditions.”
050105:  Commanding Officer, FIRST Naval Construction Division, directed the discharge of the Applicant under other than honorable conditions by reason of misconduct due to drug abuse .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050112 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 honorable because she is “deserving of an upgrade in status.” 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 two nonjudicial punishment proceedings for violations of Articles 112a of the UCMJ. The Applicant’s use of marijuana on two separate occasions 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.

The Applicant takes issue with the Navy’s zero tolerance program and argues that it should also apply to alcohol. Certain serious offenses 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. The Applicant acknowledged understanding the Navy drug policy at the time she entered the Navy. Despite understanding the policy, there is credible evidence in the record that the Applicant used illegal drugs twice. The Board could discern no impropriety or inequity and therefore considers the Applicant’s discharge proper and equitable. There is no evidence in the record to suggest that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. 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 28 April 2005, 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 (use of drugs)

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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