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

 ex-EOCA, USN
Docket No. ND04-01165

Applicant’s Request

The application for discharge review was received on 20040707.  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 20041222.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “NMCB-One had a command urinalysis on July 8th, 2003.  On or about July 17th, 2003, I was informed that I had a positive urinalysis.  For the next 8 months, I continued to work for the Navy as if nothing had ever happened.  Finally come March 19, 2004, I had finally received my discharge papers.  They would not send me home prior to this date, due to the battalion being undermanned.  As is highlighted in my leave request that was denied, due to manning resubmit at a better time.

Even though my chain of commend knew that if I didnt take my leave I was going to lose all of it.  Even my commanding officer wrote on the leave chit, “EOCA need you here.  You will be granted leave in homeport.” (Page 25, Item 24, Comments and Remarks).  While enlisted in the United States Seabees for 32 months, I would have never presumed that I would have been discharged under other than honorable conditions.  As stated on pages 22-23, my evaluation for the period of July 16, 2002-July 15, 2003.  I had received an early premote eval of 4.17.  The last three sentences in item 43 state that I am the best they have in Alfa Company and I am ready for second class.  Yet I am not even a third class petty officer yet.  In closing, I am requesting for an upgrade of under other than honorable conditions to general under honorable conditions.  I believe that besides this mistake of mine, I deserve to be granted this type of discharge.”

Documentation

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

Applicant’s DD Form 214 (2)
Letter from G_ W. P_ dtd 031109 
Letter from G_ W. P_ dtd 030809
10 pages of witness questionnaires
15 pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000923 - 010709	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010710		Date of Discharge:  040319

Length of Service (years, months, days):

	Active:    02  08  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 [12 month extension]

Education Level:  12			AFQT:  48

Highest Rate:  EOCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  5.00 (1)		Behavior:  5.00 (1)		OTA:  4.17
*Marks extracted from eval provided by Applicant

Military Decorations:  None

Unit/Campaign/Service Awards:  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:

020418:	NJP for violations of UCMJ. Article 92: Underage drinking.  Article 109: Destruction of personal property.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

020429:	Retention Warning:  Advised of deficiency (Underage drinking and destruction of personal property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030717:	NAVDRUGLAB JACKSONVILLE reports Applicant’s urine sample received 14 Jul 03 tested positive for amphetamine.  

030814:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance on or about 8 July 2003.
	Award:  Forfeiture of $645 per month for 2 month(s), restriction and extra duty for 45 days.  No indication of appeal in the record.

030818:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of misconduct due to a pattern of misconduct.

030818:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board and to obtain copies of the documents used to support the basis for the separation.

030929:	Medical evaluation for drug abuse found the Applicant not drug dependent.

031110:	Applicant waived his right to appear before an Administrative Discharge Board.

031230:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and due to pattern of misconduct.  

040106:	Applicant waived his right to submit statements to the Separation Authority, consult with counsel and to obtain copies of documents that will be forwarded to the separation authority.

040305:	Commander, 1st Navel Construction Division directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040319 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.  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.  In addition to the Applicant’s positive urinalysis and corresponding nonjudicial punishment, the Applicant violated Articles 92 and 109 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.  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.

The Applicant states that he waited eight months, working “for the Navy as if nothing had ever happened.”  The Board found no indication in the record or the documents submitted by the Applicant that his administrative separation proceedings were improper or inequitable.  The Applicant was properly notified and elected to appear before and administrative board on 20030818.  Approximately three months later, the Applicant waived his administrative board.  The Applicant was not held beyond his contract.  While the Board appreciates the Applicant’s continued service and dedication to the U.S. Navy and his nation during his administrative separation proceedings, this service was not found to mitigate the misconduct for which the Applicant was separated.  Relief 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.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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