DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-AD3, USN
Docket No. ND04-00146

Applicant’s Request

The application for discharge review was received on 20031030.  The Applicant requests the 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 list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  After a thorough review of the available 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I received an unfair and inequitable discharge after 36 months of exemplary duty and career progression based on one isolated instance with no other adverse action caused by mitigating circumstances and without proper counseling.”

2.  President of the Board

SUBJECT:  EXPLANATION OF MITIGATING CIRCUMSTANCES

My name is J_ E_ M_ (Applicant) SS# _.  This letter will address the mitigating circumstances about my recent discharge from the US Navy.  From January 2001 when I first checked in to Airborne Early Warning Squadron VAW- 124 I was a go-getter.  Within my time there I made it my duty to achieve every qualification in my field and uphold the core values of honor, courage and commitment.  In two years I reached the grade of E-5.  As per my service record and all my shipmates that I worked with, my service was exemplary.  I was what you call a model sailor.

I went through a lot of misfortunes that really put me out of my sane state of mind.  When I returned from Operation Enduring Freedom, my wife told me she had an affair and was expecting a child from another man.  She also put me in a financial bind by incurring $10,000. in debt.  A little ways down the line my mother suffered a heart attack in which I was granted emergency leave.  Shortly after that I had to go on leave again and a dear close friend of min was murdered and I suffered a gunshot wound in the process.  After all this I was under a lot of stress and in a depressed and angered mood.  My judgment failed and I went into a denial phase.  I did not seek appropriate counseling and my chain of command did not detect my need for counseling and treatment.  I turned into abusing alcohol, which caused my grief to increase.

One day I went with some acquaintances and family members of my recently deceased friend and in my bout with depression I got coaxed in to using marijuana.  I tried it because I thought in my stressed out condition that it would help me handle the situation and relax me.  I realized I had made a huge mistake a little too late.  After this incident I was offered counseling for drug and alcohol abuse, but in my denial state of mind I refused it.  Prior to making this mistake, my chain of command knew about the problems I was facing in my personal life.  No one told me to seek counseling with the chaplain; instead they just offered opinions on how to conduct my personal life. Now it is too late.

I wanted to make a career in the US Navy because I enjoyed my line of work.  My failure to deal properly with my pain and anguish over my personal life is not justification for my mistake using marijuana.  I should have been stronger and dealt with the problems in a more reasonable and practical manner.  My use of marijuana was done in an experimental one-time use, which I will always live to regret I have learned from my mistake and want to serve my country with an honorable service in the US Navy or aim other branch that will afford me this opportunity.

I am at the mercy of the board to evaluate my military records and consider the mitigating circumstances, which led to my discharge from the U.S. Navy. I sincerely hope that the board will consider and hopefully upgrade my discharge to at least a general discharge, which will allow me to pursue a military career that I can be proud of.

Sincerely,

J_ E_ M_, (Applicant)

Additional issues submitted by Applicant’s counsel Veterans Of Foreign Wars:

3.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 20040714 and the following comments are hereby submitted:

  We ask for a CLEMENCY discharge is granted based on post service.

We refer this case to the Board for their careful and compassionate consideration.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Reference of character from T_ T_ U_, dated April 04, 2003
Reference of character from D_ J_ D_, dated November 22, 2002
Reference of character from C_ E_ T_, dated November 20, 2002
Reference of character from M_ A_ L_, dated November 22, 2002
Reference of character from F_T_C_, dated November 22, 2002
Copies from Applicants record (22 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	990716 - 991004	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  991005		Date of Discharge:  021122

Length of Service (years, months, days):

	Active:    03  01  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  58

Highest Rate:  AD2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (6)	Behavior:  3.67 (6)		OTA:  3.62

Military Decorations:  None

Unit/Campaign/Service Awards:  NMAM, FLC, GCM NUC, MUC, EAWS, SSDR, NDSM, AFEM, NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

021018:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 021024, tested positive for THC.
		  [Extracted from Commanding Officer’s letter dated 021119.]
		  [Extracted from supporting documents submitted by the Applicant.]

021029:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substances on 021015, violation of UCMJ, Article 86: Absent from unit, organization, or place of duty from 0700 – 0710 on 021028, violation of UCMJ, Article 92(Extracted from supporting documents submitted by the Applicant): Failure to obey order or regulation on 021027.
	Award:  Forfeiture of ½ month pay for 2 months (suspend for 6 months), restriction to barracks 45 days, reduction to AD3.  No indication of appeal in the record.

021029:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
		  [Extracted from Commanding Officer’s letter dated 021119.]
		  [Extracted from supporting documents submitted by the Applicant.]

021029:	Applicant decided to waive his right to an administrative board.
		  [Extracted from Commanding Officer’s letter dated 021119.]
		  [Extracted from supporting documents submitted by the Applicant.]

021119:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

021122:	Applicant's discharge under other than honorable conditions by reason of misconduct as stated on DD214.
	  [Extracted from supporting documents submitted by the Applicant.]

Complete discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021122 under other than honorable conditions for misconduct due to drug abuse (A).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issue 1.  The Applicant states his discharge was based on one isolated incident in “36 months.” 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.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

Issue 2.  The Applicant contends that his problems in the Navy can be attributed to “a lot of misfortunes.” While he may feel that his personal problems were 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.

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 nonjudicial punishment proceedings for violations of the UCMJ to include a violation of Article 112a for illegal substance use.  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.

Issue 3.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is 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 other evidence related to his discharge at that time.  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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023