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

FOR OFFICIAL USE ONLY

   ex-SKSN, USN
Docket No. ND05-01204

Applicant’s Request

The application for discharge review was received on 20050712.  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.  Subsequent to the application, the applicant obtained representation by American Legion.

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, an impropriety in the narrative reason for separation and the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 3 to 2 that the discharge and the reason for discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“The discharge was improper because the Captain first promised a General Discharge in writing and then told us that it was not up to him.  The Captain also used public humiliation at my Captains Mast after I requested a private mast with him and the master at arms.  During my 3 years on board the USS DENVER I witnessed a helicopter crash killing 9 marines, the shipwreck of the USNS YUKON, credit care scandals, sexual harrassment cases by the executive officer.  I was really overwhelmed by the amount of stress that the Navy had to offer and turned to a drug for relief.  Finally I think that my 40+ continuous months of active duty entitles me to some of my veteran benefits and at least a General Discharge.  It is like I have been punished twice, first my discharge and then the grade of my discharge.  Please also take into consideration that I was just accepted into UNCG college in Greensboro and have a chance to redeem my navy core values of honor courage, and commitment.  I am still a soldier just a different war.  

Thank You”

Representative submitted no issues.

Documentation

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

Administrative Separation Processing Notice-Administrative Board Procedures dtd March 29, 2002
Administrative Separation Package Letter from Commanding Officer dtd May 7, 2002
Evaluation Report & Counseling Record (2 pgs)
Letter to Congresswomen M_ W_ from applicant (2 pgs)
Navy Drug Lab Message dtd February 25, 2002 (2 pgs)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19981130 – 19981220		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19981221		Date of Discharge:  20020705

Length of Service (years, months, days):

	Active:    03  06  15  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  74

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3) 		Behavior:  3.00 (3) 		OTA:  3.43

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Humanitarian 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: 

981130:	USN Alcohol and Drug Abuse Screening Certificate (NAVCRUIT 1133/7):  Applicant acknowledged having experimentally/casually using marijuana over six months ago.

990608:	NJP for violation of UCMJ, Article 128:  Commit an assault upon another service member by striking him on the back of the head with a glass bottle.
	Award:  Forfeiture of $447.00 pay per month for 1 month, restriction and extra duty for 20 days, reduction to E-1, reprimand; oral.  No indication of appeal in the record.

010504:	NJP for violation of UCMJ, Article 128:  Assault consummated by a battery.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 15 days to the limits of the ship.  No indication of appeal in the record.

010504:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 128-Assault consummated by a battery.  Deficiencies resulting in CO’s NJP on 4 May 2001), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020325:	NAVDRUGLAB, SAN DIEGO, CA reported Applicant’s urine sample, received 020320, tested positive for THC.

020329:	NJP for violation of UCMJ Article 92:  Failure to obey other lawful order.  Violation of UCMJ, Article 107:  False official statement.
	Violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
Violation of UCMJ, Article 134:  Obstructing justice.
	Award:  Forfeiture of $734.25 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

020329:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by enclosure (1) NAVDRUGLAB SAN DIEGO CA 251511Z MAR 02.  Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).

020329:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

020507:	Commanding Officer, USS DENVER (LPD 9) Administrative Separation Package letter to Applicant.

020507:	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.

020507:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

020703:	COMPHIBGRU directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

Service Record contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020705 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 improper and inequitable (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 positive urinalysis for THC on 20020325 and his subsequent NJP on 20020329 for a violation of UCMJ Article 112a, wrongful drug use, among other charges.  However, the record reveals that the Applicant’s process and notification for separation by reason of misconduct due to drug abuse were flawed.  On 20020329, the Applicant was improperly notified of intended recommendation for separation by reason of misconduct due to drug abuse with a least favorable characterization of general (under honorable conditions).  Based upon this notification, the Applicant elected to waive his administrative rights and was put on administrative leave.  Subsequently, on 20020507, the Commanding Officer, USS Denver (LPD 9) re-notified the Applicant of intended recommendation for separation by reason of misconduct due to drug abuse with a least favorable characterization of under other than honorable conditions.  In the Commanding Officer’s notification, the Applicant was given 30 days to respond.  Subsequent to the notification, the Applicant changed his election of rights and elected to appear before an administrative discharge board.  On 20020703, Commander, PHIBGRU 3 directed the Applicant’s discharged under other than honorable conditions by reason of misconduct due to drug abuse with a separation code of HKK.  On 20020705, the Applicant was so discharged.  Based upon the above review, the Board concluded, by a 3 to 2 vote, that the Applicant’s discharge processing was substantially deficient.  The evidence of record indicates that despite the Applicant’s entitlement to, and election of, an administrative discharge board, he was never given one.  Based upon this error, the Board concluded that the Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse was improper.  As such, the Board voted to change the Applicant’s characterization of service to general (under honorable conditions) and his narrative reason for separation to “Secretarial Authority.”  Relief granted.

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 three nonjudicial punishment proceedings for violations of UCMJ Articles 92, 107, 112a, 128, and 134, and one NAVPERS 1070/613 retention warning.  The Applicant’s misconduct reflects his failure to meet the minimum standards required for an honorable discharge.  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 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