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NAVY | DRB | 2006_Navy | ND0600408
Original file (ND0600408.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND06-00408

Applicant’s Request
The application for discharge review was received on 20060119 . 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 20061116 . 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

 A pplicant’s issues, as stated on the attached letter:
“ To Whom I t May Concern:
I lost my wife and son during a Southeast Asia cruise to another man, like so many good service members do. That absolutely devastated my world as I knew it. I of course lost my will to carry on. Fortunately, I had very good shipmates who noticed my decline in performance both personally and professionally, and helped me get my head on straight, but not before making a very careless decision to experiment with marijuana as a source of relief or an easy way to make things better. It did not, and I soon realized that and stopped, but never the less, right after I smoked I had a command urinalysis and was found to have THC in my system and that put an end to my very bright military career, as my record shows. I moved up in rank and responsibilities quickly, received several command citation s for excellence. My Captain, Cap t . C_, even capped me second class. I also received my ESWS pin as a seaman. I believe that I have served my time for my lack of good judgment. It is my wish for an honorable discharge from the navy which I loved so much and still do. I fly a flag in my yard every day and support our troops every way that I can. I don’t feel that I should be punished for the rest of my life when I was ready and willing to give my own for my shipmates, my navy, and my country, which I love so much .

Respectfully,

R_ C_ H_
[signed] R_ C_ H_
SSN (deleted)

P.S. If possible I would be honored to have my rank reinstated; to MS2”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19911220 - 19920907       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19920908              Date of Discharge: 19960521

Length of Service (years, months, days):

          Active: 0 3 0 8 1 4
         Inactive: None

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

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 43

Highest Rate: MS2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4 . 0 ( 4 )              Behavior: 4 . 0 ( 4 )                          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, Southwest Asia Medal, Sea Service Deployment Ribbon (1 st ), Enlisted Surface Warfare Specialist, Commanding Officer Letter of Appreciation .


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

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

911218:  Applicant acknowledged Enlistment Statement of Understanding concerning drug usage in the Navy.

920916:  Retention Warning: Advised of deficiency (defective enlistment and induction due to fraudulent entry (pre-service civil involvement/drug abuse: experimental/casual use of marijuana in DEP/30 days prior to ADSD)) and issued discharge warning.
960108:  NAVDRUGLAB, JACKSONVILLE, FL reported Applicant’s urine sample, received 95121 0 , tested positive THC.
960117 :  NJP for violation of UCMJ, Article 112a : Wrongful use, possession, of a controlled substance .
 Award: Forfeiture of $ 557. 00 pay per month , restriction and extra duty for 45 days, reduction to E- 3, and administrative separation . No indication of appeal in the record.
960208 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive command directed urinalysis and violation of the UCMJ in the current enlistment as evidenced by Commanding Officer’s NJP of 960117 for violation of UCMJ Article 112a , w rongful use, possession, etc, of a controlled substance.

960208 :  Applicant advised of rights and having elected not to consult with counsel , elected to waive all rights.
960209 :  Commanding Officer, USS TAYLOR (FFG-50) , recommended that Applicant be discharge d under other than honorable conditions by reason of misconduct due to drug abuse . Commanding Officer’s comments : “ I most strongly recommend separation in this case. I specifically recommend that characterization of discharge be under Other Than Honorable Conditions due to wrongful use of controlled substance. MSSN H_ (Applicant) has exhibited good service up until this single incident which demonstrate d a lack of responsibility for himself and to his shipmates .”
96031 3 :  USS TAYLOR requested BUPERS hold Applicant’s administrative separation package in abeyance due to Applicant’s pending court-marital for offenses committed since original separation package submission.

960318 :  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

960327:  BUPERS directed USS TAYLOR to hold Applicant’s discharge in abeyance pending outcome of further disciplinary action. BUPERS instructed USS TAYLOR to discharge Applicant per BUPE R S message o f 960318 if Applicant not awarded discharge at court-martial proceedings .


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19960521 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 implies that his discharge is inequitable because he used marijuana as a “source of relief” from a personal problem. The Applicant also implies that his marijuana use was an isolated incident in an otherwise successful career. 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. 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. Neither the evidence of record nor the documentation submitted by the Applicant demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant implies that his discharge is inequitable because he has “served his time.” The Applicant also requests that his rank be restored. 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. Additionally, the Board has no authority to restore the Applicant’s rank.

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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