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

  ex-AR, USN
Docket No. ND05-00438

Applicant’s Request

The application for discharge review was received on 20050112.  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 20050428.  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.  “The reason an upgrade is requested because R_'s (Applicant's) mental health was the issue for his dismissal and had been an issue since April 2002 per Master Chief-B_ R_ of USS Carl Vinson.  Per Master Chief R_ R_'s (Applicant's) Mental Condition appeared abnormal and he was assigned to see a psychiatrist on base.  The privacy Act prevented him (B_ R_) from discussing the Matter about his mental health.  In July 2002 informed by B_ R_  R_ J. P_ (Applicant) would be discharged from the Navy on a Medical discharge.  In August 2002 B_ R_ stated discharge Had changed from Medical to Administrative with pending discharge to other than Honorable due to drug abuse -- I
S_ P_ -- Mother visited R_ (Applicant) in July -- 13 or 14th 2002 Spoke with MC B_ R_ personally I stated that something was wrong with son, R_ (Applicant).”

Applicant’s mother provided the following additional Remarks:

“R_ P_ (Applicant) was not mentally capable for filling out this document.  I, his Mother, S_ P_ had to fill out form for him.  R_'s (Applicant's) thought process is so scattered and very confused.  He has to be guided and needs help in Following directions on instructions given.  He has signed His Name in small writing above my signature.”

Documentation

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

Post-Service Medical documentation (10 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	011029 - 011114	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  011115		Date of Discharge:  020923

Length of Service (years, months, days):

	Active:    00  10  09 (does not exclude lost time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12+		AFQT:  46

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.17

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:

011029:	Enlistment waiver granted for pre-service drug (marijuana) use.

020423:	NJP for violation of UCMJ, Article 86 (3 specs):  Unauthorized absence.
Specification 1:  In that Airman Recruit R_ J_. P_ (Applicant), U. S. Navy, USS CARL VINSON, on active duty, did, on or about 11 March 2002, without authority, absent himself from his unit, to wit:  USS CARL VINSON, located at Puget Sound Naval Shipyard, Bremerton, Washington, and did remain so absent until on or about 14 March 2002.
Specification 2:  In that Airman Recruit R_ J. P_ (Applicant), U. S. Navy, USS CARL VINSON, on active duty, did, on or about 17 March 2002, without authority, absent himself from his unit, to wit:  USS CARL VINSON, located at Puget Sound Naval Shipyard, Bremerton, Washington, and did remain so absent until on or about 18 March 2002.
Specification 3:  In that Airman Recruit R_ J. P_ (Applicant), U. S. Navy, USS CARL VINSON, on active duty, did, on or about 20 March 2002, without authority, absent himself from his unit, to wit:  USS CARL VINSON, located at Puget Sound Naval Shipyard, Bremerton, Washington, and did remain so absent until on or about 21 March 2002.
Violation of UCMJ, Article 121 (1 Spec):  Larceny.
Specification:  In that Airman Recruit R_ J. P_ (Applicant), U. S. Navy, USS CARL VINSON, on active duty, did, at the Navy Exchange, located at Naval Station Bremerton, Washington, on or about 12 March 2002, steal seven music CD’s, a bag of cotton balls, a washcloth and a candy bar, of a value of about $103.30, the property of the Navy Exchange.
	Award:  Forfeiture of $577.00 per month for 1 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

020501:	Retention Warning:  Advised of deficiency (Commanding Officer’s NJP on 23 April 2002 for VUCMJ Article 86 (3 Specs) and VUCMJ Article 121), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020805:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020729, tested positive for THC.

020820:	NJP for violation of UCMJ, Article 112a (1 Spec):  Wrongful use of a controlled substance.
	Specification:  In that Airman Recruit R_ J. P_ (Applicant), U. S. Navy, USS CARL VINSON, on active duty, did, at or near Bremerton, Washington, on or about 22 July 2002, wrongfully use marijuana.
Award:  Forfeiture of $577.00 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

020827:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reasons of misconduct due to pattern of misconduct, misconduct due to a serious offense and misconduct due to drug abuse.

020827:	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.

020910:	Commanding Officer, USS CARL VINSON, recommended discharge by reason of misconduct due to pattern of misconduct, commission of a serious offense and drug abuse.  Commanding Officer’s comments (verbatim):  On 22  July 2002, AR P_ (Applicant) tested positive for marijuana.  When interviewed by a command investigator, AR P_ (Applicant) denied smoking marijuana.  AR P_ (Applicant) stated that he was around people who were smoking marijuana a few weeks before he provided his sample.  At Captain's Mast, AR P_ again denied wrongfully using marijuana.  AR P_ (Applicant) claimed that several of the people he was hanging out with were blowing marijuana smoke in his face.  Not withstanding AR P_ (Applicant)’s claims, I found him guilty of wrongful use of a controlled substance.  Based on the urinalysis results, it is clear that AR P_ (Applicant) has violated the Navy’s Zero Tolerance Policy and has no potential for further naval service.  I strongly recommend separating AR P_ (Applicant) for misconduct due to drug abuse and characterizing his service as Other Than Honorable.

020913:	COMCARGRU THREE, 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 20020923 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:  When reviewing a discharge, the NDRB does consider the extent to which a mental health problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  In the Applicant's case, records available to the NDRB do not show that he was diagnosed with a mental health condition, or suffered from such problems during his time in military service.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his claimed mental health condition and does not consider the circumstances surrounding the Applicant’s claimed condition to be of sufficient nature to exculpate the Applicant’s misconduct.

With respect to the Applicant's claim that he was being medically discharged, the records available to the NDRB do not show this to be the case.  Even so, the Applicant must understand that DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4 stipulates that separation for misconduct takes precedence over potential separations for other reasons.  Whenever a member is being processed for a medical discharge, and subsequently is processed for an administrative involuntary separation for misconduct, the medical discharge is suspended pending the outcome of the non-disability proceedings.  In the Applicant's case, his administrative discharge for misconduct precluded discharge for medical reasons.

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 retention warning and two nonjudicial punishment (NJP) proceedings for violations of the following Articles of the UCMJ: 86 (total of five days unauthorized absence), 121 (larceny), and 112a (wrongful use of controlled substance). 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.

Wrongful use of a controlled substance was used as the basis of the Applicant's discharge as 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 and 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.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

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 additional 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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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