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NAVY | DRB | 2006_Navy | ND0600364
Original file (ND0600364.rtf) Auto-classification: Denied


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

ex-GSE3(SW), USN
Docket No. ND06-00364

Applicant’s Request
The application for discharge review was received on 20051228 . 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 20061103 . 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 dischar ge 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:

“ My discharge was inequitable because it was based on one isolated period of my life which was related to personal crisis. The two most important things in my life were my family and my Navy career. When I lost my family, I didn’t have the tools to deal with my personal pain. Unfortunately, I began to use drugs to deal with the pain. Because of this error in judgment, I lost my Navy career. After my discharge, I increased my knowledge in what causes drug addictions and realize it was a medical condition which could be treated. I have spent the last 5 years rebuilding my life and becoming a productive citizen. I respectively request that DRB to review my service record and consider the 8 years of outstanding service I provided for the Navy. In reviewing my record, the DRB will see that my misconduct is isolated to one period of my service career where my personal crisis overtook me and caused poor judgment . I am hoping that the DRB will approve my upgrade so that I can qualify for a civilian position at the Bremerton Shipyards or National Guard duty. I am enclosing letters from previous employers and personal contacts in support to this upgrade .”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Recommendation from D_ E_, RN, Health Care Investigator 3, Washington State Department of Health, dtd November 26, 2005
 Employment/Character Reference ltr from W_ L. B_, Distribution Center Manage r , Fisher Scientific, dtd October 18, 2005
Applicant’s DD Form 214
143 pages from service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     1992030 3 - 19920726       COG
         Active: USN      19920727 - 1994072 0       HON
         Inactive: USNR   19941116 - 19960 223       HON
          Inactive: USNR (DEP)     19960224 - 19960326      COG
          Active: USN      19960327 - 19980323       HON
Period of Service Under Review :
Date of Enlistment: 19980324              Date of Discharge: 20010905

Length of Service (years, months, days):

          Active: 0 3 0 5 12
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 3 1
Years Contracted: 5

Education Level: GED                                 AFQT: 61

Highest Rate: GSE2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4 .0 ( 4 )              Behavior: 3 .0 ( 4 )                 OTA: 3 . 47

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Armed Forces Expeditionary Medal, Southwest Asia Service Medal with Bronze Star, Sea Service Deployment Ribbon (2), Good Conduct Medal (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 :

980324 :  Reenlisted this date for a term of 5 years.

0 10412 :  NJP for violation of UCMJ, Article 112a : Wrongful use of a controlled substance-methamphetamines/amphetamine . Award: Forfeiture of $ 901. 00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 4 . No indication of appeal in the record.
010531:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).
010719:  NAVDRUGLAB, SAN DIEGO, CA reported Applicant’s urine sample, received 010713, tested positive for amphetamine and methamphetamine.
010731:  NJP for violation of UCMJ, Article 112a: Wrongfu l use of a controlled substance on or about 010713. A ward: Forfeiture of ½ pay per month for 2 months, reduction to E-3. No indication of appeal in the record [Extracted from Commanding Officer’s message dtd 010731].

010731:  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.

010731:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
010731 :  Commanding Officer, Assault Craft Unit FIVE recommended Applicant be discharge d under other than honorable conditions by reason of misconduct drug abuse . Commanding Officer’s comments : “ M ember was previously processed… recommending a General discharge. However, member has since tested positive again for Methamphetamines and has waived his right to an Administrative Board. GSEFN M_ has tested positive for amphetamines/methamphetamines abuse on 010323 and 010713 as indicated in enclosures (2) and (3). Recommend member be separated with an Other Than Honorable Discharge .”
010822 :  GCMCA, COMPHIBGRU directed the Applicant's discharge 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 20010905 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 contends that his discharge is inequitable because it is based on “one isolated period” in eight years of service. 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 two nonjudicial punishment proceedings for violations of Article 112a of the UCMJ. Violations of Article 112a of the UCMJ are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at 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 contends that he was dealing with the “[loss] of his family.” While he may feel that his personal problem was 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

The following is provided for the edification of the Applicant. 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. Examples of 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. 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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 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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