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

  ex-MMFA, USN
Docket No. ND05-00687

Applicant’s Request

The application for discharge review was received on 20050316.  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 20050727.  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:

“The discharge is improper due to the fact that my daughter had died prior to when the incident occurred, I didn’t know who to turn to for help”

“Dear Sirs, 

This statement is in support of my application to review my discharge and dismissal from the Navy.

I wanted to serve in the Navy. I believe my service was above average.  I had two minor issues of Unauthorized Absence prior to the incident that resulted in my dismissal.  I was not, nor am I a abuser of illicit drugs.  I have led an exemplary life since my discharge. My plans were to become a good sailor and father.

On 12/05/2003 my wife and I had a daughter, E___ T. W____ On 1/16/2004 she died.  My wife and I had to wait nearly six months before we found out she died of Sudden Infant Death Syndrome.  One month later I was Discharged under less than honorable conditions due to one incident that involved a contaminated urine test for drugs.

I know that I was not performing at 100%, and I should have known better that to use something that masked the pain.  I hope you can understand and help remove that dishonor and allow a General Discharge.

Respectfully, 
A__ H. W___ [signed]”      

Documentation

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

Daughter’s Birth Certificate for birth 031205
Daughter’s Amended Death Certificate for death on 040116 dtd 040803 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961118 - 970810	COG
	Active:   USN			970811 - 010807	HON

Period of Service Under Review:

Date of Enlistment:  010808		Date of Discharge:  040723

Length of Service (years, months, days):

	Active:    02  11  16		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.25 (4)		Behavior:  2.25 (4)		OTA:  2.25

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy ”E” Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon (2), Coast Guard Meritorious Unit Commendation, Armed Forces Expeditionary Medal (2)

Days of Unauthorized Absence:  48

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:

010808:	Reenlisted on board USS CONSTELLATION (CV-64) for 4 years.
 
011227:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty, violation of UCMJ, Article 107: False official statement.
	Award:  Restriction and extra duty for 10 days.  No indication of appeal in the record.

020118:	Retention Warning:  Advised of deficiency (Unauthorized absence from appointed place of duty on 011207; and false official statement on 011107 which resulted in CO’s NJP held on 011227), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020703:	NJP for violation of UCMJ, Article 86: (2 Specs), Spec 1: Unauthorized absence from 0715-0730, 020401; Spec 2: Unauthorized absence from 0800, 020515 until 1430, 020702.
	Award:  Restriction and extra duty for 45 days, reduction to E-3(suspended for 6 months).  No indication of appeal in the record.

021031:	NJP for violation of UCMJ, Article 78: Accessory after the fact, violation of UCMJ, Article 121: Larceny.
	Award:  Vacated reduction in rate to E-3 from NJP held on 020703, restriction and extra duty for 15 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

040608:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040602, tested positive for [Amphetamine/Methamphetamine].

040617:	NJP for violation of UCMJ, Article 112a: Wrongful use of methamphetamine/amphetamine.
	Award:  Forfeiture of ½ pay per month for 2 months, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

040617:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct.

040617:	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.

040623:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct. 

040715:	Commander, Navy Region Southwest, authorized 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 20040723 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).

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 four nonjudicial punishment proceedings for violations of Articles 78, 86, 107 and 112a of the UCMJ.  The Applicant’s Article 86 violation which  commenced on 20020515 culminated in a total of 48 days of unauthorized absence and is considered a serious offense.  Because of the Applicant’s continued misconduct, his suspended punishment awarded on 20020703 was vacated on 20021031.  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 contends that his discharge is improper because his distress over the untimely death of his daughter should mitigate the ramifications of his positive urinalysis.  While the Board sympathizes with the Applicant’s tragic loss, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The Board noted that prior to the Applicant’s loss, he was subject to nonjudicial punishment on three occasions, to include the adjudication of the Applicant’s serious offense for his extended period of unauthorized absence.  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 is inappropriate.

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 any relevant documentation for the Board to consider.  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 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