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

FOR OFFICIAL USE ONLY

ex-MSSR, USNR (TAR)
 Docket No. ND05-01078

Applicant’s Request

The application for discharge review was received on 20050615.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19981121			Date of Discharge:  20010305

Length of Service (years, months, days):

	Active:    01  05  29
	Inactive:  00  09  17

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18 

Years Contracted:  8

Education Level:  12				AFQT:  59

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

990908:	Commenced active duty for a period of 4 years under the TAR program.

000727:	NJP for violation of UCMJ, Article 134:  Underage drinking on 22 July 00.
Award:  Forfeiture of $563 per month for 2 months, (1 month suspended for 6 months), restriction and extra duty for 45 days.  No indication of appeal in the record.

010112:	Applicant arrested by Corpus Christi Police Department for possession of marijuana.  [Extracted from CO’s letter].

010207:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

010208:	NJP for violation of UCMJ, Article 112a:  Wrongfully use marijuana on or about 11 January 2001.
Violation of UCMJ, Article 112a:  Wrongfully possess marijuana on or about 11 January 2001.
	Award:  Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

010209:	Applicant advised of rights and having elected not to consult with counsel elected to waive all rights.

010212:	Commanding Officer, USS INCHON (MCS-12), recommended discharge under other than honorable conditions by reason of misconduct drug abuse.  Commanding Officer’s comments:  “Seaman Apprentice S_ (Applicant) appeared at Commanding Officer’s Nonjudicial Punishment on 22 July 2000 for underage drinking.  On 12 January 2001, he was arrested by the Corpus Christi, Texas Police Department for possession of marijuana.  He admitted to military investigators that he had another INCHON Sailor purchase the marijuana for him and that he smoked some of the marijuana that night.  He also admitted to smoking marijuana on another occasion aboard USS INCHOL (MCS-12).  Since he was not charged by civilian authorities for using marijuana, MSSA S_ (Applicant) received nonjudicial punishment again on 8 February 2001 for wrongful use of marijuana (two specifications).  MSSN S_ (Applicant) made a conscious decision to purchase and use marijuana despite the Navy’s zero tolerance for such misconduct.  I recommend expeditious administrative separation under Other Than Honorable Conditions.”

010222:	Commander, Mine Warfare Command authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010309:	CNPC 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 20010305 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his NJP on 20010208 for UCMJ Article 112a, wrongful drug use and possession.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to drug abuse on 20010207 with a least favorable characterization of under other than honorable conditions.  On 20010209, the Applicant waived his procedural rights.  On 20010212, Commanding Officer USS Inchon (MCS 12), recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  On 20010309, Commander, Naval Personnel Command, directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  The Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Articles 134, underage drinking, and 112a, wrongful drug use and possession.  The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, 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