DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT


FOR OFFICIAL USE ONLY


ex-ETSA, USN
Docket No. ND06-00214

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 general (under honorable conditions) and that the Narrative Reason for Separation be changed . 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 2006092 6 . 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

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PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant ’s issues, as stated on the application :

“ I joined the military in 1997 to be the best. D uring my enlistment I went through the trials of a young man. T he truth is the military is all I ever wanted to do. I made childish mistakes. I have learned from my mistakes , and I hope that you review this application to take an outstanding citizen and recruit back into the military . ”

Documentation

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

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19960730 - 19970714       COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19970715              Date of Discharge: 20001103

Length of Service (years, months, days):

         Active: 0 3 0 3 1 9
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 4 ( 24 -month extension)

Education Level: 12                                 AFQT: Unknown

Highest Rate: ETSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.5 ( 2 )                        Behavior: 1 . 5 ( 2 )                  OTA: 2 . 42

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Expert Rifleman Medal, SSBN Deterrent Patrol Pin

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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly Article 3630620 .

Chronological Listing of Significant Service Events :

960730:  Pre-service enlistment waiver for 1 non-minor misdemeanor (leaving the scene of an accident) granted.

960731:  Pre-service program waiver for 1 non-minor misdemeanor (leaving the scene of an accident ) granted.

970717:  Retention Warning: Advised of deficiency (D efective induction as evidenced by failure to disclose required basic enlistment information. Shoplifting, 10/87, Tonopah, NV, 24 hours community service ) . Advised any further deficiencies in performance or conduct may result in processing for administrative separation.

980105:  Applicant on unauthorized absence 0730-1510, 980105.

990528:  NJP for violation of UCMJ, Article 123: Forgery.
         Award: R eduction to E- 2 . No indication of appeal in the record.

991201:  Co unseling: Advised of deficiencies ( Command notified of NSF check, court appearance, impending court date, late report to work two days in a row, performance and private indebtedness ), notified of corrective actions and assistance available.

991203:  Applicant on unauthorized absence 0800-1500, 991203 .

000107:  NJP for VIOLATION OF UCMJ ART 86 (Absence without leave) : In that ETSA J_ L. N_(Applicant), USN, did onboard USS MICHIGAN (SSBN 727) (BLUE), on or about 3 December 1999, fail to go at the time prescribed (0800, 3 December 1999) to his appointed place of duty, to wit: USS MICHIGAN Off-crew Administrative Building. Commenced over liberty. Arrived onboard 1500, 3 December 1999.
VIOLATION OF UCMJ ART 86 (Absence without leave) : In that ETSA J_ L. N_(Applicant), USN, did onboard USS MICHIGAN (SSBN 727) (BLUE), on or about 7 December 1999, fail to go at the time prescribed (0700, 7 December 1999) to his appointed place of duty, to wit: USS MICHIGAN Off-crew Administrative Building. Commenced over liberty. Arrived onboard 1030, 7 December 1999.
VIOLATION OF UCMJ ART 123a (Making, drawing, or utterin g, check, draft, or order without sufficient funds) : In that ETSA J_ L. N_(Applicant), USN, did, onboard USS MICHIGAN (SSBN 727) (BLUE), on or about 2 March 1999, with intent to deceive and for the payment of a past due obligation, to wit: wrongfully and unlawfully utter a check to Money Tree, a certain check (Unnumbered check) for the payment of money upon Kitsap Credit Union Bank, in words and figures as follows, to wit: $575.00, then knowing that he, ETSA J_ L. N_(Applicant), USN, did not or would not have sufficient funds in or credit with Kitsap Credit Union for the payment of the said check in full upon its presentment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to maintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 24 February 1999, make and utter to Denise Robinson a certain check, in words and figures, as follows, to wit: in payment of a debt utter a check for $55.00 (unnumbered check), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full upon its presentment for payment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to maintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 2 March 1999, make and utter to COSTCO a certain check, in words and figures, as follows, to wit: in payment of a debt utter a check for $155.32 (Check No. 1032), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full upon its presentment for payment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to maintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 2 March 1999, make and utter to COSTCO a certain check, in words and figures, as follows, to wit in payment of a debt utter a check for $201.54 (Check No. 1034), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full its upon presentment for payment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to maintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 10 March 1999, make and utter to D_ R_ a certain check, in words and figures, as follows, to wit in payment of a debt utter a check for $75.00 (Check No. 1035), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full upon its presentment for payment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to maintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 18 March 1999, make and utter to Target Store a certain check, in words and figures, as follows, to wit in payment of a debt utter a check for $38.82 (Check No. 1036), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full upon its presentment for payment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to maintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 8 April 1999, make and utter to Pizza Hut a certain check, in words and figures, as follows, to wit in payment of a debt utter a check for $21.62 (Check No. 1051), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full upon its presentment for payment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to maintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 22 March 1999, make and utter to Handy Andy’s a certain check, in words and figures, as follows, to wit: in payment of a debt utter a check for $22.04 (Check No. 1054), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full upon its presentment for payment.
VIOLATION OF UCMJ ART 134 (Check, worthless, making and uttering -- by dishonorably failing to m aintain funds) : In that ETSA J_ L. N_(Applicant), USN did at USS MICHIGAN (SSBN 727) (BLUE), on or about 23 March 1999, make and utter to D_ R_ a certain check, in words and figures, as follows, to wit: in payment of a debt utter :a check for $65.00 (Check No. 1056), and did thereafter dishonorably fail to maintain sufficient funds in the Kitsap Credit Union Bank for payment of such check in full upon its presentment for payment .
Date of Offenses: 24 February 1999, 2 March 1999, 8 March 1999, 10 March 1999, 18 March 1999, 3 December 1999, 7 December 1999
         Award: Forfeiture of ½ mo pay per mo for 2 mos, suspended for 6 mos, correctional custody for 30 days, reduction to E- 1, suspended for 6 mos. No indication of appeal in the record.

000204:  Commanding Officer, USS MICHIGAN (SSBN 727)(BLUE) remitted correctional custody for 30 days awarded at NJP dated 000107.

000825:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 000821, tested positive for amphetamine/methamphetamine.

000825:  Applicant disqualified from sub duty by reason of unreliability due to drug abuse.

00082 8 :  NJP for violation s of UCMJ, Article 112(a) : Wrongful use/possession of controlled substance .
         In that ETSN J_ L. N_( Applicant ), United States Navy, did, on or about 16 August 2000 wrongfully use a controlled substance; to wit: amphetamine/methamphetamines.
         In that ETSN J_ L. N_( Applicant ), United States Navy, did, on or about 16 August 2000 wrongfully possess a controlled substance, to wit: amphetamine/methamphetamines.
         Award: Forfeiture of ½ mos pay per mo for 2 mos, (suspend 1 mo for 6 mos), reduction to E-2. No indication of appeal in the record.

000829:  Drug and Alcohol Abuse Report: Amphetamine abuse, ashore off duty. Abuse denied. Random urinalysis 000816. Medical/Dental recommended separat ion from service. Physician found Applicant not dependent and recommended separat ion from service. Commanding Officer recommended processing for separation.

000920 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct - pattern of misconduct, misconduct - commission of a serious offense, and misconduct - drug abuse.

000920 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

001004 :  Commanding Officer, Staff Enlisted Personnel, Submarine Group 9 , recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, commission of a serious offense and drug abuse. Commanding Officer’s comments: “ Seaman N_( Applicant ) blatantly violated several articles of the UCMJ, which he knew was contrary to the Navy’s policy. He also used illicit drugs. Accordingly, he has no potential for further productive naval service. By separate action he was disqualified for duty in submarines. I strongly recommend that he be separated form the Naval service and his service be characterized as Other Than Honorable. ”

001011 :  Commander, Submarine Group 9 , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

00101 8 :  Applicant found physical ly qualified for separation.

Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001103 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).

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 three nonjudicial punishment proceedings for violations of Articles 86, 112a, 123, 123a and 134 of the UCMJ. The Applicant’s was awarded punishment for two violations of Article 112a of the UCMJ and eight violations of Article 134 of the UCMJ. The Applicant’s violations of Articles 112a, 123, 123a and 134 of the UCMJ are considered 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 Applicant requests that the Narrative Reason for Separation be changed. 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. 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 separation authority directed that the Applicant be discharge by reason of misconduct due to drug abuse. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore, the Board found no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief denied.

The Applicant implies that his discharge is inequitable because he was going “through the trials of a young man.” While he may feel that his personal experiences and immaturity were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Regarding the Applicant’s desire to reenlist, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Therefore, the NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to change a discharge to facilitate employment, educational or reenlistment opportunities. Relief is not warranted.

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), Change 27, effective 27 March 2000 - 11 Feb 2001, 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, Article 123, forgery, Article 123a, writing checks with insufficient funds and or Article 134, making and uttering worthless checks by dishonorably failing to pay.

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 .

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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