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

FOR OFFICIAL USE ONLY

   ex-MM2, USN
Docket No. ND05-01250

Applicant’s Request

The application for discharge review was received on 20050725.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20060302.  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 commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was inequitable because it was based on one isolated incident in 17 years of service with three honorable discharge with no other adverse action.”

Documentation

Only the service and medical records 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)	19790122 – 19790923		COG
	Active:   USN 			19790924 – 19830828		HON
	Active:   USN			19830829 – 19890922		HON
	Active:   USN			19890923 – 19950111		HON

Period of Service Under Review:

Date of Enlistment:  19950112		Date of Discharge:  19961212

Length of Service (years, months, days):

	Active:    01  11  00  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  33 

Years Contracted:  4 

Education Level:  12				AFQT:  34

Highest Rate:  MM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (1) 		Behavior:  4.0 (1)		OTA:  4.0 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Achievement Medal with 2 Stars, Joint Meritorious Unit Award, Navy Unit Commendation, Meritorious Unit Commendation, Fourth Good Conduct Award, National Defense Service Medal, Armed Forces Expeditionary Medal, Southwest Asia Service Medal with 1 Star, Sea Service Deployment Ribbons with 4 Stars, Navy Recruiter Service Ribbon, 3 Flag Letters of Commendation, 17th Gold Wreath Award.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events: 

950112:	Reenlisted this date for a term of 4 years.

950927:	Retention Warning:  Applicant failed first physical readiness program failure in a four year period due to exceeding height weight standards prior to the official Physical Readiness Test.

960830:	Applicant arrested by Escambia County Sheriff’s Office for driving under the influence and possession of cocaine.

960912:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 960903, tested positive for cocaine.

960926:	Commanding Officer, Naval Hospital, Pensacola, CAAC evaluation indicates Applicant does not meet criteria for drug or alcohol abuse or dependence.  Applicant in service drug use is considered a drug abuse incident.  Applicant appears to possess poor potential for future productive service due to drug use.

961004:	Circuit Court, Escambia County Florida:  Applicant plead not guilty to possession of a controlled substance and driving under the influence.  Set for jury trial on 961118.

961018:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession, etc. of controlled substance, to wit: Cocaine.
Violation of UCMJ, Article 92: Failure to obey order or regulation by operating a government vehicle for other than official business.
	Award:  Forfeiture of $840.00 pay per month for 2 months, reduction to E-5.  No indication of appeal in the record.

961018:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse. 

961018:	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.

961024:	Commanding Officer, Navy Recruiting District Montgomery recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.  Commanding Officer’s comments:  “Probable cause urinalysis was conducted in the case of Petty Officer P_ (Applicant) and the other six recruiters assigned to his station on 30 August 1996 after this command received reported of his arrest for DUI and possession of cocaine and a separate hotline complaint (DOD Hotline Complaint 96099) was received alleging illegal drug use at his station and by Petty Officer P_ (Applicant).  (enclosure (3)) Only his urinalysis was positive for cocaine use. (enclosure (4)).  As his civilian trial date has been postponed, involved separate charges and evidence, Captain’s Mast proceedings were held to resolve the alleged drug use as evidenced by Navy urinalysis after consultation with staff judge advocate representatives.  (enclosure (5)) It is not considered in the best interest of the Navy to hold administrative separation action in abeyance until resolution of civilian charges as further delays are expected.  Although Petty Officer P_ (Applicant) has an otherwise outstanding military record, his unreliability and willingness to violate the UCMJ and Navy regulations make him unfit for further service.  Recommend that Petty Officer P_ (Applicant) be separated from the naval service with an Other Than Honorable discharge.”

961120:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961212 by reason of misconduct due to commission of a serious offense (A and B) 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 (C and D).  

The Applicant contends that his discharge is inequitable because it is based on a single isolated incident in 17 years of total service.  Applicable 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.  The Applicant was arrested for driving under the influence and possession of cocaine after he was seen driving his government vehicle in a reckless fashion.  Based upon this arrest and a separate DOD Hotline complaint alleging drug use, the Applicant was given a probable cause urinalysis that tested positive for cocaine.  The Applicant was awarded nonjudicial punishment for violations of UCMJ Articles 92 and 112a.  Under applicable regulations, a violation of either UCMJ Article 92 or 112a is considered a serious offense.  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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111, drunken or reckless operation of a vehicle, or 112a, wrongful use, possession, etc., of controlled substances.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  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