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

FOR OFFICIAL USE ONLY

 ex-OSSN, USN
Docket No. ND06-00500

Applicant’s Request

The application for discharge review was received on 20060222.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  

Decision
A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20061018. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote 3 to 2 that the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT DRUG ABUSE, authority: MILPERSMAN (NAVPERS 15560C), Article 3630620, Separation Code “HKK.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“1. This request for relief is based on the Initial Review of Discharge, Docket Number.  ND 096-00929 Dated 96/06/27
  2.  The Applicant has truly demonstrated his character over a lengthy period of time.  This package of documents is being submitted to provide concrete examples of my character and my life since leaving the Navy in 1993.”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Ltr to the Naval Discharge Review Board from the Applicant, undated (2 pages)
Applicant’s Initial Review, dtd June 27, 1996 (11 pages)
Applicant’s Military Records (2 pages)
Applicant’s Work Resume (2 Pages)
Applicant’s DMV Driving Record
Applicant’s University Transcripts (3 pages)
Ltr from J_ S_ Loudoun Parkway Homeowners Assoc., undated
        Ltr from National Arbor Day Foundation, Undated
        Ltr from Applicant listing his Charitable Contributions, undated
       Character reference ltr from J_ B_, dtd April 23, 2003
       Character reference ltr from J_ E. B_, dtd April 23, 2003
       Character reference ltr from J_ O_ LCSW, dtd March 23, 1999, (2 pages)
       Character reference ltr from K_ L_, undated, (3 pages)
       Character reference ltr from D_ H_, undated, (2 pages)
       Character reference ltr from P_ H_, dtd June 28, 2000
       Applicant Performance appraisals covering the period Oct 30, 2000-May 6, 2002,
       (7pages)
       Certificate from Carnegie Mellon Univ, Professional Education Series, dtd 
       May 13, 2004
      Certificate of Accomplishment Sensormatic, dealing w/ difficult people, dtd
      October 28, 1996
      Certificate of Completion, DoD Information Assurance for auditors and evaluators,
      dtd April 1, 2003

      Certificate of Completion Evelyn Wood Reading Dynamics, dtd April 6, 1998
      Certificate of Completion Security 101, dtd October 25, 2004, unsigned
      Certificate of Completion System Scanner, dtd April 29, 2004
      Certificate of Completion Internet Scanner, dtd April 27, 2004
      Certificate of Completion VPN-1 Firewall- 1 Management, dtd Nov 14, 2001
      Certificate of Completion VPN-II NG, dtd Nov 12, 2001 
      Certificate of Excellence Microsoft Outlook 98 Advanced, undated
      Microsoft Certified Professional Transcript, dtd April 14, 1999
      GTE Certificate of Training Microsoft Outlook 98 Advanced, dtd July 23, 1999
      GTE Certificate of Training VISIO 5.0 Fundamentals, dtd July 29, 1999
      GTE Certificate of Training MS Frontpage 98 Fundamentals, dtd July 15, 1999
      Applicant Investigation Summary and Clearance Record, dtd October 17, 2006,
      (2 pages)
      University of Phoneix Credit evaluation report, dtd October 17, 2006 
      Applicant Business card
      Business card for H_L. P_, Corporate Security Officer for NetSec Global Security    
      Services
PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19860322 – 19860421		COG
	Active:    USN			19860422 – 19900331		HON

Period of Service Under Review:

Date of Enlistment:  19900401		Date of Discharge:  19921106

Length of Service (years, months, days):

	Active:    02 07  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  2 days
	Confinement:		  None

Age at Entry:  23

Years Contracted:  5

Education Level:  12				AFQT:  48

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (3) 		Behavior:  3.6 (3) 			OTA:  3.8

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Enlisted Surface Warfare Specialist, Good Conduct, Armed Forces Expeditionary Medal, Sea Service Deployment with Two Bronze Stars, National Defense Service Medal, Southwest Asia w/Bronze Star

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

860425:	Applicant briefed on Navy's policy of drug and alcohol abuse.  

900401:	Reenlisted this date for a term of 5 years.

900918:	Retention Warning:  Advised of deficiency (Lack of personal and financial responsibility.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910806:	Retention Warning:  Advised of deficiency (Failure to maintain standards of conduct, good order and discipline.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911011:	Applicant to unauthorized absence at 0700 on 911011.  Intentions unknown.

911013:	Applicant from unauthorized absence at 0253 on 911013.
	Information available indicates that OS2 M_ J. K_ (Applicant), USN was arrested 0135, 11 October 1991 by Charleston County Sheriff’s Department and placed in the Charleston County Detention Center as a result of an outstanding bench warrant for failure to appear in court on 22 January 1991.  OS2 M_ J. K_ (Applicant), USN was released from Charleston County Dention Center on own recognizance at 2000, 12 October 1991.  Surrendered on board USS KLAKRING  (FFG 42), 0253, 13 October 1991.
	
920518:	Retention Warning:  Advised of deficiency (Consistent failure to be at appointed place of duty on time and ready to perform your duties.  Marginal professional performance and lack of personal initiative.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920715:	Applicant to unauthorized absence at 0700 on 920715.

920715:	Applicant from unauthorized absence at 0810 on 920715 (1 hour and 10 minutes/surrendered).

920915:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
Award:  Forfeiture of $608.10 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

920918:	Applicant notified of intended recommendation for discharge and if separation is approved, the characterization of service may be Under Other Than Honorable Conditions by reason of misconduct due to drug abuse as evidenced by the drug abuse incident which occurred during current enlistment.

920918:	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.  Applicant did elect to make a written statement.

920925:	Dependency Evaluation/Antabuse Placement:  Urinalysis positive for cocaine MVA (ETOH Related).
	Drug and Alcohol History:  Cocaine as Teen.  Problem increase over last few years, Difficulty with wife.  This UA was “incidental.”
Previous treatment /evaluation in the Navy: CAAC, Level I.
	A:  Non-dependent alcohol/drug abuser incidental/experiment
	P:  Other:  Not available for drug use.

921007:	Ltr from Applicant, dtd October 7, 1992, concerning NJP on 920915

921008:	Commanding Officer, USS KLAKRING (FFG 42), recommended to Commander, Naval Military Personnel Command that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Therefore, under reference (a) I have determined that OS3 (SW) K_ (Applicant) be discharged for misconduct due to drug abuse.  I recommend the discharge should be characterized as Other than Honorable.”

921028:	BUPERS, directed the Applicant's discharge with type warranted by under other than honorable conditions by reason of misconduct due to drug use.

961029:	NDRB documentary record review Docket Number ND96-00929 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921106 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, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service (C and D). The Board’s vote was 3-2 that the character of the discharge shall change, but by unanimous vote, the narrative reason for discharge shall not change. The discharge shall change to: general (under honorable conditions). 

 The Applicant requests an upgrade to his characterization of discharge based on post service equity. The Board found that the Applicant’s post-service evidence was sufficiently creditable to warrant an upgrade to his characterization of service to general (under honorable conditions). The Applicant’s employment resume and consistent upward career progression, educational transcript, 14 certificates of completion for professional courses, charitable contributions to the community, satisfactory record check based on current clearance level and interim top secret, and strong character references demonstrated a strong commitment to community and desire to excel. However, the Board found that the Applicant’s post-service conduct did not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge. Therefore, partial relief is granted.

The Applicant requests an upgrade to his characterization of discharge to honorable. 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 retention warnings and a nonjudicial punishment proceeding for a violation of Articles112a of the UCMJ. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. A violation of Article 112a is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial. 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 on this basis is not warranted.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 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.

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