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

FOR OFFICIAL USE ONLY

ex-AEAR, USN
Docket No. ND06-00551

Applicant’s Request

The application for discharge review was received on 20060310.  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 20070118.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD this Period, should read:  “2002  02  27.”  Block 24, Character of Service, should read:  “Under Other Than Honorable Conditions.”  Block 29, Dates of Time Lost During This Period, should read:  “03Jan02 – 03Jan20 (19).”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

No decisional issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214  (Service 7) and (Member 4)
Letter from A_ L_, Applicant’s mother, undated
Report of Mental Status Exam by R_ D. K_, Ph D, dtd December 8, 2005  (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020108 - 20020226	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020227		Date of Discharge:  20040709

Length of Service (years, months, days):

	Active:    02  04  13  (Does not exclude lost time)  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  19 
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  57

Highest Rate:  AEAN

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):  Navy Unit commendation (1), Sea Service (1)

* 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: 

030102:	Applicant to unauthorized absence at 0800 on 030102.

030121:	Applicant from unauthorized absence at 1730 on 030121 (19 days/surrendered).

030305:	NJP for violation of UCMJ, Article 86:  Unauthorized absence
Violation of UCMJ, Article 107:  False official statement
	Award:  Forfeiture of $452.00 pay per month for 2 months, restriction and extra duty for 15 days, reduction to E-2 (suspended).  No indication of appeal in the record.

030424:	Reduction in pay grade awarded at NJP on 030305 vacated due to continued misconduct.

030424:	NJP for violation of UCMJ, Article 121:  Larceny 
	Award:  Forfeiture of $500.00 pay per month for 1 month, restriction and extra duty for 7 days, reduction to E-1 (suspended).  No indication of appeal in the record.

031008:	Substance Abuse Rehabilitation Program (SARP):  Substance abuse screening evaluation:  Applicant was not diagnosed with a substance use disorder.  Recommendation:  Applicant be treated in an Alcohol Impact Program

040408:	Civil Authorities:  Arrested on 040408 for suspected violation of California vehicle code 23152(a) (driving under the influence), 20002 (hit and run), 10853 (tampering with a vehicle) and 148 (a) (1) (resisting arrest).
	[Extracted from Commanding Officer Ltr, dtd 040621.]

040409:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
Violation of UCMJ, Article 91:  Willful disobedience of a warrant, non- commissioned officer or petty officer.
Violation of UCMJ, Article 92:  Failure to obey order or regulation.
Violation of UCMJ, Article 128:  Assault
Violation of UCMJ, Article 134:  Communicating a threat.
	Award:  Forfeiture of $596.00 pay per month for 2 months, restriction for 60 days, and reduction to E-1.  No indication of appeal in the record.

040409:	Retention Warning:  Advised of deficiency (Article 86: Unauthorized absence, Article 91: disobedience of a Chief Petty Officer, Article 92: Failure to obey an order, Article 128: Assault, Article 134: Communicating a threat, and drunk and disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040607:	NJP for violation of UCMJ, Article 121:  Larceny, wrongful appropriation.
	Award:  Forfeiture of $596.00 pay per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

040615:	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, misconduct due to drug abuse and misconduct due to commission of a serious offense.

040615:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040621:	Commanding Officer, Strike Fighter Squadron, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “AR L_ (Applicant) has been given every opportunity to succeed in the Navy, but due to his complete disregard and lack of self discipline, he has failed to live up to the Navy’s Core Values of Honor, Courage, and Commitment.  AR L_ is an administrative burden on this command and the Navy, and he was given his last chance to “fix” himself at NJP held on 040409.  Additional charges stemming from acts of misconduct came to light while he was serving restriction awarded from the aforementioned NJP.  His acts of larceny were committed against his fellow shipmates with malice.  As such, I strongly recommend that he be separated from the Naval service with a characterization of service as Other Than Honorable.”

040701:	Applicant submitted a signed statement to NCIS admitting use of  marijuana on about six occasions since February 2004

040709:	Commanding Officer, Naval Air Station, Lemoore, directed the Applicant's discharge under other than honorable conditions by reason of misconduct – drug abuse, pattern of misconduct, commission of a serious offense with a SPD code of HKK (drug abuse).

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 20040709 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 submitted no issues for consideration.

Mandatory processing for separation is required for Sailors who abuse illegal drugs.  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 a retention warning and four nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 107, 121, 128 and 134 of the UCMJ.  The Applicant’s violations of Articles 91, 92, 107, 121, 128 and 134 are serious offenses.  There is evidence in the record the Applicant was also arrested for suspected violations of the California vehicle code for driving under the influence, hit and run tampering with a vehicle and resisting arrest.  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.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, 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 91, insubordinate conduct, Article 92, failure to obey order/regulation, Article 107, false official statement, Article 121, larceny, Article 128, assault or Article 134 communicating a threat.

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