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

 
 ex-BUCR, USN
Docket No. ND04-00771

Applicant’s Request

The application for discharge review was received on 20040408.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on drug use I was test many times for this and they were all clear.  My infraction did not warrant this type of discharge.  I excelled at all my endeavors in the Navy.  The discharge was unfair and needs to be vendicated on the facts of my and their records.  I never used or tested for any drugs of any kind.  The CO tested me many times and with mighty threats separated me from service.  I am not saying some punishment was not due but I feel under the UCMJ my separation of OTH was undo.”

Documentation

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

Applicant’s DD Form 214 (Members 1)
Applicant’s DD Form 214 (Members 4)
Enlisted Performance Record
Enlisted Performance Evaluation Reports (6 pages)
Evaluation Report & Counseling Record (4 pages)
Letter of Commendation Deliverance Letter
Letter of Commendation
Letter of Appreciation Deliverance Letter
Letter of Appreciation  

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	931008 - 940314	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940315		Date of Discharge:  960807

Length of Service (years, months, days):

	Active:    02  04  24		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rate:  BUCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)		Behavior:  3.80 (3)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, M-16 Rifle Expert, SSDR(2)

Days of Unauthorized Absence:  25

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

960530:	NJP for violation of UCMJ, Article 86: UA from 0530, 960403 to 1100, 960403; violation of UCMJ Article 86: UA from 960407 to 960502 (25days/S); violation of UCMJ Article 121: Wrongful appropriation of a John Deere tractor of a value greater than $100.00; violation of UCMJ Article 134: Drunk and disorderly conduct.
	Award:  Forfeiture of $490.00 pay per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

960614:	Applicant’s statement:  [I BUCA K_ T. J_ [Applicant], [SSN deleted], of NMCB-7 did smoke marijuana while I was in Gulfport MS. in an unauthorized absence status from 7 April to 2 May 1996.  After turning myself in from u/a status to CBC Gulfport did continue the use thereof.]

960621:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful written order by wrongfully consuming alcohol beverage while on restriction, violation of UCMJ Article 112a: Wrongful use of marijuana on or about 960526.
	Award:  Forfeiture of $404.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

960624:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense and that the characterization of service could be under other than honorable conditions.

960624:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960626:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense. Commanding Officer’s comments […Member provided consent urinalysis upon his surrender at Naval Construction Battalion Center, Gulport, Mississippi and also upon his return to NMCB SEVEN; however, the results of both testes were negative.  BUCR J_ [Applicant] has confessed to using drugs during his unauthorized absence and also while he was at CBC, Gulfport awaiting transfer to his parent command.]

960722:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960807 under other than honorable conditions for misconduct due to commission of a serious offense (A & B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  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.

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 Articles 86, 92, 112a,121 and 134 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, wrongful appropriation of value of greater than $100.00 , if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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