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NAVY | DRB | 2006_Navy | ND0600241
Original file (ND0600241.rtf) Auto-classification: Denied


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

ex-PNSN, USN
Docket No. ND06-00241

Applicant’s Request
The application for discharge review was received on 20051118 . 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 personal appearance hearing discharge review before a traveling panel closest to Salisbury, Maryland . The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 2006100 6 . 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:

“ To be H onest with myself and T he Board, I was wrong in what I have done to the Navy as well as to my fellow shipmates and family. I want to change my look on L ife by starting to admit my problem and face them by changing the outlook of my life. To do this I must realize that I must make an effort to come to you not as a person seeking forgiveness. But a person trying to correct his wrongs. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Reference ltr from R_ E. M_ , undated
Employment Reference ltr from B_ M_ , Plant Manager, A_ , dtd November 10, 2005
Character Reference ltr from Mrs. D_ W-W_, H_ W_, dtd November 6, 2005
 Continu ing Care Plan Letter, dtd June 30, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010614 - 20010712       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010713              Date of Discharge: 20040706

Length of Service (years, months, days):

          Active: 0 2 11 2 4
         Inactive: None

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

Age at Entry: 32

Years Contracted: 4

Education Level: 12                                 AFQT: 35

Highest Rate: PNSN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 4 )              Behavior: 2.8 ( 4 )                           OTA: 3 .0 9

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal (1) , Sea Service Deployment Ribbon (2)


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 :

010613:  Enlistment waiver regarding assault granted.
040129 :  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 040126 , tested positive for cocaine .
040223 :  NJP for violation of UCMJ, Article 112a :
          Specification 1: In that PNSN R_ L. W_ (Applicant), USN, USS THEODORE ROOSEVELT, on active duty, did, in Salisbury, Maryland, on or about 27 December 03, wrongfully use cocaine.
         Specification 2: In that PNSN R_ L. W_ (Applicant), USN, USS THEODORE ROOSEVELT, on active duty, did, in Salisbury, Maryland, on or about 17 January 04, wrongfully use cocaine.
         Award: Forfeiture of $ 797. 00 pay per month for 2 month s , restriction and extra duty for 45 days. No indication of appeal in the record.
040226 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug abuse.

04022 6 :  Applicant advised of rights and having elected not to consult with counsel elected to waive all rights .

040315:  Applicant found physically qualified for separation.

040521 :  Commanding Officer, USS THEODORE ROOSEVELT (CVN 71) , recommended discharge under other than honorable conditions by reason of misconduct drug abuse . Commanding Officer’s comments : “ PNSN W_ (Applicant) is an admitted drug user who disregarded the zero tolerance drug abuse policy of the Navy. I therefore feel strongly that he has no potential for further naval service and should be separated immediately with an Other than Honorable discharge .”
040601 :  GCMCA, Commander, Cruiser-Destroyer Group EIGHT , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040607:  Applicant admitted to Level III treatment.
040702:  Naval Medical Center Portsmouth (NMCP), Substan ce Abuse Rehabilitation Program Discharge Summary:
         Date of Admission: 07 JUNE 04    Date of Discharge: 02 July 04
          Discharge Diagnoses:
         AXIS I: Cocaine Dependent
         AXIS II: Deferred
         AXIS III: No Diagnosis
          Mode of Discharge: Completed Formal Treatment Successfully .
         Discharge Recommendation:
          Participate fully in Continuing Care Plan from NMCP SARP, to include regular monitoring by unit Drug and Alcohol Program Advisor, participation in formal aftercare meetings, and participation in 12-Step meetings as arranged by command or program advisor.
         Report to Primary Care Provider for follow-up.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040706 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).

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. 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 nonjudicial punishment proceedings for violations of Article 112a of the UCMJ. Violations of Article 112a of the UCMJ are considered serious offense for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at a special or general court-martial. The Applicant’s conduct is a violation of the special consideration afforded the Applicant at his waivered enlistment. 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 implies, through the submission of his supporting documents, that his discharge should be changed on the basis of post-service accomplishments. 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. The Applicant provided character references and employment-related documentation to support his claim of post-service accomplishments Examples of additional 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 sufficient 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 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, 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 .

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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