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

FOR OFFICIAL USE ONLY

ex-MSSA, USN
Docket No. ND06-00484

Applicant’s Request

The application for discharge review was received on 20060216.  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 20061130.  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 characterization 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 31 months of service with no other adverse action.  I tested positive for marijuana shortly after returning from the Gulf War.  I smoked marijuana to cope with the stress of the war and returning back to the states with the chances of going back to the Gulf War.  I know I was wrong for smoking marijuana while in the Navy and accepted full responsibility for that action.  I’m currently receiving treatment for my substance abuse problem and am learning effective ways to cope with the stress.”

Documentation

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

Applicant’s DD Form 214  (Service 8) and (Service 2)
Ltr from the Department of Veterans Affairs, N_ W_, MSSW, Social Worker, Domiciliary Care for Homeless Veterans Program

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960719 – 19970617	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970618		Date of Discharge:  20000120

Length of Service (years, months, days):

	Active:    02  07  02  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  40

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Battle “E” Award (2), Armed Forces Service Medal, Sea Service Deployment Medal, Armed Forces Expeditionary Medal, Letter of Commendation, Meritorious Unit Commendation.

* Not Available

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: 

990324:	NJP for violation of UCMJ, Article 121:  
	Specification: Larceny
Violation of UCMJ, Article 134:
Specification: Wrongful use/possession of a false military ID. 
	Award:  Forfeiture of $537.00 pay per month for 2 months, restriction and extra duty for 45 days, RIR suspended 6 months.  No indication of appeal in the record.

990324:	Retention Warning:  Advised of deficiency (Violation of the UCMJ Article 121 (Larceny), and 134 wrongful use/possession of a false military ID) as evidenced by NJP awarded on 990324.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991222:	NJP for violation of UCMJ, Article 92:
	Specification:  Dereliction of duty.
Violation of UCMJ, Article 112a: 
Specification:  Wrongful use of controlled substance.
	Award:  Restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

000103:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

000103:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.  

000103:	Commanding Officer, USS CAPE ST. GEORGE (CG 71), recommended Commander, Cruiser-Destroyer Group EIGHT, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.  Commanding Officer’s comments:  “MSSA K_ (Applicant) refuses to meet the minimum requirements for military service.  His continued disregard for the UCMJ and violation of the Navy’s Zero Tolerance Drug Abuse policy demonstrates a lack of potential for further service.  I strongly recommend that MSSA K_ be separated from the naval service by reason of misconduct due to a pattern of misconduct, and drug abuse and that his characterization of service be under Other Than Honorable conditions.”

000112:	Commander, Cruiser-Destroyer Group 8, directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drugs.

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 20000120 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant states his discharge was based on one “isolated incident in 31 months of service with no other adverse action.”  Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant provided evidence of post service accomplishments in support of his request for upgrade.  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct, which precipitated the discharge.  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), Change 24, effective 20 May 99 until 26 March 2000, 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 (use of a controlled substance).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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