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NAVY | DRB | 2006_Navy | ND0600930
Original file (ND0600930.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND06-00930

Applicant ’s Request
The application for discharge review was received on 20060705 . 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 20070426 . 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 ization 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 - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety: The Applicant claims he was not given the proper discharge based on the condition he was in at the time of discharge.

Documentation
In addition to the service record and medical records the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s letter of information, undated
 Applicant ’s DD Form 214 (State Director of Veterans Affairs 6)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None
Period of Service Under Review :
Date of Enlistment: 19931213              Date of Discharge: 19950728

Length of Service (years, months, days):

         Active: 01 01 02 (Does not exclude lost time.)
         Inactive: 00 06 14

Time Lost During This Period (days):
         Unauthorized absence: 27 day s
         Confinement:              None

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 8

Education Level: 12                                 AFQT: 33

Highest Rate: FA

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2 )                        Behavior: 3 . 5 ( 2 )        OTA: 3 . 4 0

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 3630620 .
Chronological Listing of Significant Service Events :

940627 :  Commenced active duty for a period of 3 years.

950508:  Applicant to unauthorized absence at 0715.

 950604:  Applicant from unauthorized absence at 2300 (27 days/surrendered).
950605:  Applicant ’s voluntary statement.

 950609 :  NJP for violation of UCMJ, Article 86: Unauthorized absence from 950508 to 950604.
Violation of UCMJ, Article 87 : Missing ship’s movement on 950509.
Violation of UCMJ, Article 112a : Wrongful use of marijuana.
         Award: Forfeiture of $ 400. 00 per month for 2 month s , restriction for 6 0 days, reduction to E- 1 . No indication of appeal in the record.
950613 :  NAVDRUGLAB, San Diego, CA , reported Applicant ’s urine sample, received 950606 , tested positive for THC .
950616 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

950616 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

950620 :  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse .
960724 :  BUPERS 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 19950728 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 claims he was not given the proper discharge based on the condition he was in at the time of discharge. The Applicant contends that his problems in the Navy can be attributed to his Chain of Command not granting him leave to see his ill mother. While he may feel that being denied leave by his command 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. Relief denied.

The Applicant is requesting a discharge characterization upgrade to general (under honorable conditions). When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. 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 one nonjudicial punishment proceeding for violations of Articles 86 (unauthorized absence), 87 (Missing movement) and 112a (Wrongful use of a controlled substance) of the UCMJ. 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 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 . 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 s 87 (Missing movement) and 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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