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NAVY | DRB | 2006_Navy | ND0600381
Original file (ND0600381.rtf) Auto-classification: Denied


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

ex-SHSN, USN
Docket No. ND06-00381

Applicant ’s Request
The application for discharge review was received on 20060104 . 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 20061108 . 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 General (U nder 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:
“ In November 2002 aboard the USS NASSAU LHA-4 during a command rack inspection I handed over (voluntarily) a bag of what was belived to be steroids which where never tested nor was I. I was then sent to Norfolk VA and elected an admin board which on Jan. 29, 2003 voted to retain me. 5 months later I receive notification that I was to be seperated, ignoring the Boards verdict. I admitted I made a mistake, and realize the Navy has zero tolerance to drugs, but I’m a health phenatic. I’ve never taken a drug in my life, not even smoked a ciggarete. I turned to steroids simply because I was underwieght. I was a 4.0 early promote sailor with absolutely no prior instances of misconduct what so ever. My entire chain of command felt I was a true asset to the U.S. Navy. I am asking you please change my RE Code so that I can once again enlist in the Navy and serve my country. ”
Applicant ’s Remarks : (Taken from the DD Form 293 .)

“ Thanks for taking the time to review my case. ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Member 4)
Fourteen pages from Applicant ’s service record
E-mail from L_ M. P_, LTJG, USNR, dtd January 27, 2003
 E-mail from L_ M. P_, LTJG, USNR, dtd January 28, 2003
 Evaluation Report and Counseling Record from June 27, 2001 to June 15, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990329 - 19990817       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19990818              Date of Discharge: 20030626

Length of Service (years, months, days):

          Active: 0 3 1 0 09
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 32

Highest Rate: SH3

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4 .0 ( 3 )                        Behavior: 4.0 (3)                 OTA: 3 . 9 0
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal / Sea Service Deployment Ribbon /Navy “E” Ribbon//


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

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

990818 :  Pre-service waiver for 1 pound underweight granted.
021114 :  NJP for violation of UCMJ, Article 112a ( 8 specifications) : Wrongful possession of a controlled substance.
         Specification 1: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_( Applicant ), U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 10 vials of DECA-DURABOLIN, a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
          Specification 2: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_ , U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 28 ampules of WINSTROL DEPOT, a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
         Specification 3: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_ , U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 1 ampule of TESTOUS, a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
         Specification 4: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_, U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 7 vials of ESTANDRON, a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
         Specification 5: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_, U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 118 capsules of VIRIGEN, a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
         Specification 6: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_, U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 38 pills of ANAPOLON, a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
         Specification 7: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_, U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 8 ampules of SUSTARETARD, a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
         Specification 8: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_, U.S. Navy, USS NASSAU, on active duty, did on or about 021028, wrongfully possess 4 empty bottles of BIONABOL a controlled substance, while on board a vessel used by the armed forces, to wit: USS NASSAU.
          Charge II: Violation of UCMJ, Article 112A, Wrongful use of a controlled substance.
          Specification: In that Ship’s Serviceman Third Class Petty Officer T_ C. K_, U.S. Navy, USS NASSAU, on active duty, did on various occasions between May 2001 and October 2002, wrongfully use a controlled substance, to wit: WINSTROL.
          Award: Forfeiture of $ 784. 00 per month for 2 month s , reduction to E- 3 . No indication of appeal in the record.
021 114 :  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.

021202 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
030129 :  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 , and by a vote of 2 to 1, recommended retention.

030312 :  Commanding Officer, Transient Personnel Unit, Norfolk, Virginia , recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse. Commanding Officer’s comments: “ SHSN K_( Applicant ) reported to Transient Personnel Unit from USS NASSAU (LHA 4) on 021122 for administrative separation processing due to Drug Abuse. He requested and was granted an Administrative Board. The board voted unanimously that SHSN K_ did commit Misconduct due to Drug Abuse, however, they voted 2 to 1 that he should be retained in the Naval Service. A Letter of Deficiency was submitted by the Defense Counsel requesting a favorable endorsement of the board’s recommendation that SHSN K_ be retained in the Naval service. Consequently, the SJA did not endorse the request favorably and recommended that SHSN K_ be separated with a General Discharge. SHSN K_ failed to adhere to the Navy’s zero tolerance drug abuse policy. Accordingly, based on the evidence and service member’s statement, I recommend him for separation from the Navy with a General Discharge. ”

030319:  Commander, Naval Personnel Command recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.

030522:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.

030606 :  Commander, Naval Personnel Command directed the Applicant 's discharge with a general (under 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 20030626 by reason of misconduct due to drug abuse (A) with a service characterization of general (under 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 ( B and C ).

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. Separation under these conditions generally results in characterization of service under other than honorable conditions. In the Applicant’s case, an Administration Discharge Board found misconduct due to drug abuse. Although the Administrative Discharge Board recommended that the Applicant be retained on active duty, the Secretary of the Navy approved, in accordance with proper procedures, the Applicant’s discharge. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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.

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 any 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C . Secretary of the Navy Instru ction 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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