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

  ex-DCFN, USN
Docket No. ND05-00669

Applicant’s Request

The application for discharge review was received on 20050309.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Los Angeles, CA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  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:

“MY REASON FOR USEING DRUGS WAS DUE UNTOLERBLE STRESS AND TREATMENT BY MY DIRECT CHAIN OF COMMAND.  I FOUND NO OTHER OPTION TO IMPROVE OR CHANGE MY SITUATION.  I FELT PRESSURED TO FIND ANY MEANS TO BE DISCHARGED.  I DID NOT WANT LEAVE MILITARY SERVICE.  I FELT THAT MY USE OF DRUGS WAS FORCED.  I DO NOT PLACE THE BLAME UPON ANYONE ELSE.  I DO HOWEVER BELEAVE I WAS FORCED OUT OF THE NAVY.”

Documentation

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

Applicant’ s DD Form 214  (Member 4 copy)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990805 - 000718	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000719		Date of Discharge:  020719

Length of Service (years, months, days):

	Active:    02  00  01  (Does not exclude lost time)
	Inactive:  None

Age at Entry: 17 (Parental Consent)	Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  47

Highest Rate:  DC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)		Behavior:  3.0 (2)		OTA:  3.09

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal, Navy “E” Ribbon, Sea Service Deployment Ribbon

Days of Unauthorized Absence:  13

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:

020605:	NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 020530, tested positive for THC, MDA, MDMA, and METHAMPHETAMINE.

020610:	Applicant’s sworn statement admitting to using drugs on 17 May 2002 at his home off post.  Applicant stated that he understands the Navy’s “Zero Tolerance” policy and is aware of the consequences of his actions.

020611:	NJP for violation of UCMJ, Violation of UCMJ, Article 86 (2 specs):
Specification 1:  In that DC3 S_ J. A_ (Applicant) did, on or about 020515, without authority, absent himself from his unit, to wit:  USS CARL VINSON located at Bremerton, WA and did remain so absent until on or about 020520.
Specification 2:  In that DC3 S_ J. A_ (Applicant) did, on or about 020528, without authority, absent himself from his unit, to wit:  USS CARL VINSON, located at Bremerton, WA and did remain so absent until on or about 020606.
Violation of UCMJ, Article 91:  On or about 020404, willfully disobey a superior Chief Petty Officer.
Violation of UCMJ, Article 112a (4 specs – add charge):
Specification 1:  In that DC3 S_ J. A_ (Applicant) did, at or near Bremerton, WA, on or about 020520, wrongfully use THC (tetrahydrocannabinol) aka marijuana.
Specification 2:  In that DC3 S_ J. A_ (Applicant) did, at or near Bremerton, WA, on or about 020520, wrongfully use MDA (Methylenedioxyamphetamine) aka Ecstasy.
Specification 3: In that DC3 S_ J. A_ (Applicant) did, at or near Bremerton, WA, on or about 020520, wrongfully use MDMA (Methylenedioxymethamphetamine) aka Ecstasy.
Specification 4:  In that DC3 S_ J. A_ (Applicant) did, at or near Bremerton, WA, on or about 020520, wrongfully use Methamphetamine.
Violation of UCMJ, Article 134:  On or about 020320 and 020322, wrongfully and willfully impersonate a security officer of the Navy.
Award:  Forfeiture of $681.00 pay per month for 2 months, restriction for 60 days, reduction to E-3.  No indication of appeal in the record.

020611:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse with the least favorable characterization of service possible being under other than honorable conditions.

020611:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020715:	Commanding Officer, USS CARL VINSON (CVN 70) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse.  Commanding Officer’s comments:  "On 20 May 2002, DCFN A_ (Applicant) tested positive for marijuana, methylenedioxyamphetamine, methylenedioxy-methamphetamine and methamphetamine.  When interviewed by a command investigator, DCFN A_ (Applicant) stated that he smoked two “bowls” of marijuana and took two ecstasy pills during a party at his home on 17 June 2002.  At CO’s Mast, DCFN A_ (Applicant) pled guilty to all four specifications of wrongful use of a controlled substance.  Based on the urinalysis results and DCFN A_ (Applicant)’s own admissions and pleas, it is clear that he violated the Navy’s Zero Tolerance Policy and has no potential for future naval service.  I strongly recommend separating DCFN A_ (Applicant) for misconduct due to drug abuse and characterizing his service as Other Than Honorable."  [Note:  administrative error in the CO's statement regarding the date of 17 June 2002; Applicant admitted drug use during party on 17 May 2002, as reflected in his statement of 10 June 2002.]

020717:	COMCARGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020719:	Applicant was discharged in Absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020719 under other than honorable conditions for misconduct due to drug abuse (A).  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 (B and C).

The Applicant contends that his misconduct, specifically his drug abuse (use), was the result of his being mistreated by his chain-of-command and, because of this mistreatment, he was pressured to find any means to be discharged.  The NDRB recognizes that serving in the U.S. Navy is challenging and that our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  The hardships and challenges of military life, however, do not excuse a Sailor from accountability for his actions.  While the Applicant may feel that he was mistreated by his command, and that this mistreatment mitigates his misconduct, there is no evidence in the record to suggest that the Applicant was not treated fairly or was denied due process during his administrative separation.  Further, the Board could find no evidence that the Applicant should not be held responsible for his misconduct.

The record clearly shows that the Applicant willfully and negligently abused (used) illegal drugs, as documented by the positive results from the Naval Drug Laboratory in San Diego, CA on 20020605 and by the subsequent nonjudicial punishment (NJP) proceedings on 20020611 for violation of UCMJ Article 112a Wrongful use of controlled substance.  The Applicant was punished during the same proceedings for additional violations of Articles of the UCMJ including 86 Unauthorized absence, 91 Insubordinate conduct, and 134 Impersonation.  Further, there is no evidence in the record that the Applicant was treated unfairly by anyone involved in the discharge process.  The record shows that the Applicant was advised of the rights afforded to him as part of the administrative separation process and waived his right to consult with legal counsel certified under Article 27B of the UCMJ as well as his right to present his case before an administrative discharge board.  The evidence of record does not show that the Applicant should not be held accountable for his actions or that he was treated inequitably.  Relief on this basis is denied.

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 or inequity after a review of Applicant’s case.  While there is no law or regulation that provides for an unfavorable discharge to 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 any post-service 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 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 V, Para 502, Propriety.

C.  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