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NAVY | DRB | 2006_Navy | ND0600237
Original file (ND0600237.rtf) Auto-classification: Denied


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

ex-ISSA, USN
Docket No. ND06-00237

Applicant ’s Request
The application for discharge review was received on 20051116 . 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 20061005 . 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 believe my discharge was inequitable because it was an extreme consequence based on an isolated incident after 18 months of honorable service. A complete investigation was never finished and I believe it was easiest for everyone, at the time, to just discharge me from the navy. I was told, at my discharge briefing, that 2 years after my discharge I could get it upgraded if I had a valid reason. My reason for getting my discharge upgraded is to re-enlist in the Army National Guard. ”
Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Member 4)
Memorandum from J_ R. B_, SSG, RIARNG, Recruiting and Retention NCO, dtd November 2, 2005
 Applicant ’s letter, undtd (not signed)
Letter from C_ C_, M.A., Short Term Adolescent Treatment (STAT) dtd August 10, 2005
 Certificate of Completion of STAT program, dtd July 27, 2005
Letter of Recommendation from P_ N_, BFA, M.Ed., Carpentry Instructor, Diman Regional Vocational Technical High School, dtd April 8, 2005
 Letter of Recommendation from R_ H. F_, C DR , USN-R ET , American Legion Scouting, dtd April 2, 2005
 City of Fall River, Massachusetts, Citation in recognition of receiving the Outstanding Vocational Student Award, dtd May 3, 2001
 Certificate of Participation in carpentry from 27 th State Leadership and Skills Conference, dtd April 2 8, 2001
Applicant’s Report of Medical History, dtd July 28, 2005 (4 pages)
 Applicant’s Report of Medical Examination, dtd July 28, 2005 (4 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010307 - 20010925       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010926              Date of Discharge: 20030221

Length of Service (years, months, days):

          Active: 0 1 0 4 26
          Inactive: None
Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 7 (Parental Consent)

 Years Contracted: 4
Education Level: 12                                 AFQT: 90

Highest Rate: IS SN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 1 )                        Behavior: 3. 0 ( 1 )        OTA: 3 .00
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):

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

021212 :  NJP for violation of UCMJ, Article 86: Unauthorized absence: Fail to go to appointed place of duty (SAR Swimmer School).
Violation of UCMJ, Article 92 : (Fail to obey SECNAVINST 5300.28C by wrongfully possessing drug paraphernalia.
         Award: Forfeiture of $ 5 00 per month for 2 month s , restriction and extra duty for 30 days, reduction to E- 2 . No indication of appeal in the record.
02121 3 :  NAVDRUGLAB, San Diego, CA , reported Applicant ’s urine sample, received 021206 , tested positive for amphetamine/methamphetamine.

021231 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct – drug abuse.

021231 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
030113 :  Commanding Officer, USS BOXER (LHD 4) , recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “ IAW MILPERSAN 1910-146, ISSA R_( Applicant ) is unsuitable for continued military service due to his wrongful possession of drug paraphernalia, and his subsequent positive urinalysis for Amphetamine and Methamphetamines resulting from a urinalysis conducted after he returned from unauthorized absence. ISSA R_( Applicant )’s behavior is a detriment to good order and discipline. Based on his misconduct , a characterization of Other Than Honorable (OTH) is most appropriate. ”

030116 :  COMPHIBGRU THREE , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

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 20030221 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 states his discharge was based on one “isolated incident after 18 months of honorable service.” 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. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for possession of drug paraphernalia. The Applicant states that his possession of drug paraphernalia was never fully investigated. However, the Applicant was the subject of a positive urinalysis shortly after his nonjudicial punishment. Separation for drug abuse does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. 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 stated that he wanted to re-enter the military. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, 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.

The Applicant states that he was told that after two years he could have his discharge upgraded if he had a valid reason. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. There is no law or regulation that authorizes a discharge to be automatically upgraded. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. 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 (use of a controlled substance) and Article 92 (violation of a lawful general order).

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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