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NAVY | DRB | 2006_Navy | ND0600936
Original file (ND0600936.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND06-00936

Applicant’s Request
The application for discharge review was received on 20060703 . 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. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in Washington DC. The Applicant responded and requested to have a documentary record discharge review and acknowledged that this may be the only review within 15 years from the date of his discharge. The Applicant did not designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510 . 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 - ISSUES AND DOCUMENTATION

Decisional Issues
Equity – Isolated incident

Equity – Youthful age and “mental problems ”

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)     19900425 - 19900814       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19900815              Date of Discharge: 19910903

Length of Service (years, months, days):

          Active: 0 1 00 1 9 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 42 day s
         Confinement:              None

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 28

Highest Rate: SR

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2 . 8 ( 1 )               Behavior: 2 . 8 ( 1 )                           OTA: 2 . 8 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 - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

900425:  Applicant acknowledged Navy’s drug screening statement of understanding.
900815:  Enlistment waiver granted for one non-minor misdemeanor (2d degree retail fraud).
900817 :  Applicant briefed on Navy's policy of drug and alcohol abuse.
910218:  Applicant to UA, 0630 910218.

910228:  Applicant from UA, 0030, 910228 (11 days/surrendered).

910306:  Applicant to UA, 0730 910306.
910315:  NAVDRUGLAB, Oakland, CA reported Applicant’s urine sample, received 910311, tested positive for THC.
910406:  Applicant returned to military control at 2249, 910406 (31 days/surrendered).

910411:  NJP for violation of UCMJ, Article 86(2 specs): Unauthorized absence.
          Specification 1: Unauthorized absence from 0630, 910218 until 0330, 910228 [11 days/S] .
         Specification 2: Unauthorized absence from 0730, 910306 until 2249, 910406 [31 days/S] .
          Award: Forfeiture of $350.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
910412:  Retention Warning: Advised of deficiency (Repeated unauthorized absence due to your personal immaturity and lack of good judgement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910502:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance to wit: marijuana and methamphetamines .
 Award: Forfeiture of $350.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
 910508 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s Non-Judicial Punishment on 910502 for violation of Article 112a, UCMJ, wrongful use of controlled substance, to wit: marijuana.

910508 :  Applicant advised of rights and having elected not to consult with counsel , elected to waive all rights.
910517:  Medical Department USS KNOX (FF-1052) evaluation indicates no evidence of alcohol or drug dependency.
910610 :  Commanding Officer , USS KNOX (FF 1052) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse .

910627:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
910703 :  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19910903 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 Board presumed regularity in the conduct of governmental affairs (E).
The Applicant states that his CO told him that his discharge would be upgraded 6 months after his discharge. T here is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. Relief denied.

Equity – Isolated incident : The Ap plicant states that other than the 2 UA periods, the drug issue was an isolated case.

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. 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.

Equity – Youthful age and “mental problems”: The Applicant contends that he was young and that he did not understand the support structure of the chain of command.

While he may feel that age and mental problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. There is no evidence of mental or emotional problems in the Applicants service and medical records. 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.

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 a retention warning and 3 nonjudicial punishment proceedings for violations of Articles 86 and 112a of the UCMJ. Violations of UCMJ Article 86 (UA for more than 30 days) and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a 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 following is provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .
















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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