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

FOR OFFICIAL USE ONLY

  ex-DR, USN
Docket No. ND05-01519

Applicant’s Request

The application for discharge review was received on 20050914.  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 20060621.  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: 

“My discharge was inequitable because it was based on one isolated incident in 6 months of service with no other adverse action.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20021024 – 20030420		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030421		Date of Discharge:  20040507

Length of Service (years, months, days):

	Active:    01  00  17  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  20

Years Contracted:  4 (12 month extension)

Education Level:  10				AFQT:  59

Highest Rate:  DA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  1.0 (1) 		OTA:  2.50 

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: 

040220:	NJP for violation of UCMJ, Article 112a: In that Dentalman Apprentice J_ R_, U.S. Navy, did on active duty, at Field Medical Service School, Camp Pendleton, California, on or about 031104, wrongfully possess less than 30 grams of marijuana a schedule I controlled substance.
	Award:  Forfeiture of $597 pay per month for 1 month, restriction to 21 Area for 30 days, extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

040223:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct drug abuse.

040223:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements to the administrative board or to the separation authority in lieu of a board and the right to obtain copies of the documents used to support the basis for the separation.

040316:	Commanding Officer, Field Medical Service School, Camp Pendleton, CA recommended to CNPC (PERS-8), VIA Commanding General, Marine Corps Base Camp Pendleton that Applicant be discharged under other than honorable conditions by reason of misconduct drug abuse.  Commanding Officer’s comments:  “DR R_ (Applicant) reported to this intermediate activity on 04 October 2003 for training in preparation for his assignment to 1ST Dental Company, Camp Pendleton, CA. DR R_’s (Applicant) history prior to military service shows that he was a below average student in high school and did not complete high school, but attended the Alhambra Adult Education Division, where he received a diploma on 21 June 2002.  Upon enlistment he graduated Recruit Training and Dental Technician School with some difficulty.  And, since reporting to this training command he has been unable to meet academic requirements and was recycled once and subsequently disenrolled from the school due to a second academic failure.  DR R_ (Applicant) by his own admission had made some poor choices over the course of his attendance at this school.  He chose to associate with the wrong group of shipmates and it ultimately left him in a precarious position.  A witness overheard another service member ask DR R_ (Applicant) to discard some “pot rolled up in a white sock in his bag” if this service member was taken to the brig.  DR R_ (Applicant) admits that he agreed to accept the bag from the other service member to mail to the service member’s family.  DR R_ (Applicant) also admitted that he knew the other service member was using drugs and did not report this fact to any member of the chain of command, but DR R_ (Applicant) claims he did not know that there were drugs in the bag when he accepted it.  Regardless, DR R_ (Applicant) willingly agreed to accept the bag from the service member and he stored it in his locker until he later moved it to a shared locker because he was “concerned” about what was in the bag.  Consequently, after submitting to a voluntary search less than 30 grams of marijuana was found in the bag, which he claims he accepted from the other shipmate.  While evidence in the bag (i.e. mail address to the other service member and clothing items labeled with the other service member’s name) indicates that the bag likely belong to the other service member, and not DR R_ (Applicant), DR R_ (Applicant) did willingly accept this bag and at some point felt there was a need to be concerned about its contents.  The lack of disclosure to the command left DR R_ (Applicant) in possession of the bag and it contents, which included the marijuana.  DR R_ did not enter the Navy on a waiver related to drugs and has no prior documented history of drug use as depicted by enclosures (12) and (13).  DR R_ (Applicant) admits that he know what he did was wrong, he should have notified his chain of command about his shipmate’s drug use and he should have turned in the bag when he felt that there was something in the bag that should not be there.  However, despite the problems DR R_ (Applicant) has encountered, he has remained a hard worker and has not been involved in any other disciplinary issues.  Since DR R_ (Applicant) is new to the Navy, and has remained cooperative throughout the proceedings, I am willing to give him the benefit of the doubt.  Therefore, I recommend that the Administrative Separation be approved, however, I request that the separation be suspended for a period of twelve months.  I believe that although he does not meet the academic standards of serving with the Fleet Marine Force, he does have the potential to serve the United States Navy and that this suspension will allow DR R_ (Applicant) an opportunity to make better choices for himself and his professional career.”

040408:	SJA review determined the case sufficient in law and fact.

040419:	Commanding General, Marine Corps Base, Camp Pendleton recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040428:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040507 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

There is credible evidence in the record that the Applicant used illegal drugs. The Applicant was punished at nonjudicial punishment proceedings for violation of Article 112a of the UCMJ, wrongful possession of 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.

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, drug abuse.

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