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

FOR OFFICIAL USE ONLY

    ex-ATAN, USN
Docket No. ND05-01298

Applicant’s Request

The application for discharge review was received on 20050727.  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 20060406.  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 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: 

“I feel that I did my very best to serve my country to the best of my abilities.  I know what I did was wrong, & I am sorry for it.  Please consider the fact that I excelled in my job, because I wanted to do the best job I could.  When 9-11 happened, I was the first sailor in my shop to raise my hand & volunteer to help fight, even though I didn’t have to.  I did this because I was proud to be a sailor, my only issue is that you consider how while I was still enlisted, for I feel that you consider how I was while I was I was still enlisted, for I feel that I was an asset to the Navy.  Thank You”

Documentation

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

Evaluation Report &Counseling Record, dtd June 14, 2002
Certificate of Commendation, dtd March 31, 2002
Letter of Commendation, undated
Applicant’s DD Form 214  (copy 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990610 – 19991214		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991215		Date of Discharge:  20030328

Length of Service (years, months, days):

	Active:    03  03  14  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (24 months extension)

Education Level:  11				AFQT:  79

Highest Rate:  AT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  5.0 (1) 		Behavior:  2.5 (2) 		OTA:  2.50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Development Ribbon, Battle “E” Ribbon, 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: 

990610:	Enlistment waiver approved for one non-minor misdemeanor (DUI).

000828:	Civil Conviction:  New Orleans Traffic Court for violation of Reckless Driving.
Sentence:  Pay $400.00 for fines and court cost.

000905:	NJP for violation of UCMJ, Article 92:  Orders violation. [Extracted from Retention Warning, 000905].

000905:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment on 05 September 2000 for VUCMJ Article 92 orders violation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030221:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
	Award:  Forfeiture of ½ months pay per month for 2 months, reduction in rate.  No indication of appeal in the record.

030307:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession, etc., of controlled substances marijuana.
Award:  Forfeiture of $721.00 pay per month for 2 months, Reduction in Rank to next inferior paygrade.  No indication of appeal in the record.

Service Record did not contain the Administrative Discharge package.  
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030328 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

There is credible evidence in the record that the Applicant used illegal drugs.  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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 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 3 nonjudicial punishment proceedings for violations of Articles 92 and 112a of the UCMJ.  In addition, the Applicant received a retention warning and was convicted in civil court for reckless driving.  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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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 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.

E.  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