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

 ex-MSSN, USN
Docket No. ND05-00735

Applicant’s Request

The application for discharge review was received on 20050330.  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 20050713.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am requesting an upgrade from “other than honorable” discharge to a “general” discharge based on my service record.

A. Never an EVAL mark below 3.8
B. 3 Letters of Commendation in 2 yrs
C. E-1 to E-5 in less than 18 months
D. Service in S.W. Asia during Persian Gulf

I have live with an other than honorable discharge for over 10 years for “1” indiscretion.  I am respectfully requesting an up-grade to general.

			Thank you for consideration
			 Respectfully
			B___C. B____”  

Documentation

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

Letter from Applicant dated March 23, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890322 - 890410	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890411		Date of Discharge:  920110

Length of Service (years, months, days):

	Active:    02  09  01
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 (12 month extension)

Education Level:  10			AFQT:  76

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.56 (5)		Behavior:  3.36 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  LOC, NUC, SSDR, NDSM, SASM(3)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910316:	NJP for violation of UCMJ, Article 92: Gambling with playing cards for money on 910301.
	Award:  Forfeiture of $150.00 pay per month for 1 month, restriction for 10 days (suspended for 6 months).  No indication of appeal in the record.

910316:	Retention Warning:  Advised of deficiency (As evidenced by your misconduct in which you were awarded CO’s NJP on 910316 for a violation of the UCMJ, Article 92, Disobeying a lawful general regulation by gambling on board USS SARATOGA (CV-60) with playing cards for money), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
910927:	NAVDRUGLAB, OAKLAND, CA, reported Applicant’s urine sample, received 910919, tested positive for cocaine.

911011:	NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine on or about September 1991.
	Award:  Forfeiture of ½ pay per month for 2 months, restriction for 60 days, reduction to E-4.  No indication of appeal in the record.

911030:	Applicant evaluated by Counseling and Assistance Center, NAS Whidbey Island.  Applicant does not appear dependent on alcohol or drugs.  Recommend administrative separation.

911109:	Medical evaluation for drug abuse found Applicant not dependent.

911205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your illegal or wrongful use and possession of cocaine and misconduct due to the commission of a serious offense as evidenced by your disobedience of a lawful general regulation.

911205:	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 and to submit statements on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened.

911206:	Applicant’s statement to BUPERS.

911220:	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. 

920115:	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 19920110 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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.  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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 92 and 112a of the UCMJ.  Violations of Article 92 of the UCMJ are considered serious offenses.  The Applicant’s proficiency and conduct averages are, respectively, 3.56 and 3.36, and reflect the Applicant’s overall service during his enlistment.  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 his discharge is inequitable because it was based on one incident.  The Applicant was discharged for misconduct due to commission of a serious offense as the result of an Article 92 violation that occurred prior to the Applicant’s illegal drug use.  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.  Further, 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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, 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 92, failure to obey an order or regulation, 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