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

FOR OFFICIAL USE ONLY

  ex-BUCA, USN
Docket No. ND05-01115

Applicant’s Request

The application for discharge review was received on 20050622.  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 20060209.  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

Applicant’s issues, as stated on the application: 

“Please reconsider discharge.  Based on conduct and overall 3.00 evaluations, I do not feel that an under other than honorable discharge is warranted.  Thank you for your assistance & consideration!”

Documentation

Only the service record was 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:  USNR (DEP)	20020419 - 20021021	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021022		Date of Discharge:  20041207

Length of Service (years, months, days):

	Active:    02  01  16
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)			Behavior:  2.00 (2)		OTA:  2.84

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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: 

030813:	NJP for violation of UCMJ, Article 92 - (Failure to obey an order or regulation.)
	Award:  Forfeiture of 7 days pay (susp 6 mos), restriction and extra duty for 14 days, reduction to E-2 (susp 6 mos).  No indication of appeal in the record [extracted from NAVPERS 1626/7 Report and Disposition of Offenses].

040712:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 040707, tested positive for THC.

040720:	Applicant’s voluntary statement.

040820:	NJP for violation of UCMJ, Article 112a:
	Specification: In that Builder Constructionman W_ (Applicant), U.S. Navy, Naval Station Annapolis, Maryland, on active duty, did, at Annapolis, Maryland, on or about 3 July 2004, wrongfully use marijuana.
	Award:  Forfeiture of $668.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

040831:	Applicant notified of intended recommendation for discharge by reason of misconduct - drug abuse.  Applicant notified that if separation is approved the least favorable characterization of service possible is under other than honorable conditions.

040831:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040902:	Officer in Charge, Construction Battalion Unit FOUR ZERO THREE recommended discharge under other than honorable conditions by reason of misconduct – drug abuse.  Officer in Charge’s comments:  “BUCA W_(Applicant) participated in a Urinalysis Command Sweep with a positive urine sample test for marijuana as a result, see Encl (3).  In his voluntary statement, he fully admits to buying and using the drug over the Independence Day holiday period.  He has waived his rights to an Administrative Board, see Encl (1).  Due to the severity of offense, I strongly recommend BUCA W_(Applicant) be separated from the Navy, with his characterization of service being Other than Honorable.”

041112:	Commander, FIRST Naval Construction Division directed the Applicant's discharge under other than honorable conditions by reason of misconduct to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041207 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).  The Board presumed regularity in the conduct of governmental affairs (D).

There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded two nonjudicial punishments (NJP) for violations of UCMJ Articles 112a, wrongful drug use and Article 92, failure to obey an order or regulation.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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.  The Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

The Applicant contends his 3.00 evaluations merit an upgrade in the characterization of his service.  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 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 was awarded two nonjudicial punishments for wrongful drug use and failure to obey an order or regulation.  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.  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), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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