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

FOR OFFICIAL USE ONLY

ex-DKSN, USN
Docket No. ND06-00617

Applicant’s Request

The application for discharge review was received on 20060314.  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 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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Decisional Issues

The Applicant claims the tamper proof seal on his urinalysis sample was broken and the seal was not resealed in his presence.  He believes the sample should have been disregarded and another immediate sample should have been given.   

Documentation

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

Applicant’s statement, dated February 27, 2006
Applicant’s DD Form 214 (Member 4)
Evaluation Report and Counseling Record for report period January 6, 1999 to July 16, 1999
Evaluation Report and Counseling Record for report period July 16, 1999 to July 15, 2000
Evaluation Report and Counseling Record for report period July 16, 2000 to July 21, 2000
Evaluation Report and Counseling Record for report period July 21, 2000 to June 15, 2001
Applicant’s Letter of Commendation from June 1999 to May 2001
Applicant’s citation for May 1999 to July 2000
Certificate of Appreciation, dated February 16, 2000
Letter of Appreciation, dated July 13, 2001
Twenty-eight pages from Applicant’s service record
Letter from D_ R. E_, Department Chair, Fine Arts and Humanities, Pueblo Community College, dated April 13, 2000
OPNAVINST 5350.4C, dated June 29, 1999, Enclosure (2) (28 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19981121 - 19990104	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990105		Date of Discharge:  20011120

Length of Service (years, months, days):

	Active:    02  10  16
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4

Education Level:  12				AFQT:  62

Highest Rate:  DK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.8 (4)			Behavior:  2.5 (4)		OTA:  3.28

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  NONE

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

010316:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010309, tested positive for cocaine.

010409:	Retention Warning:  Advised of deficiency (Misconduct due to alcohol abuse, as evidenced by your alcohol related incident on 001208 in which you were apprehended by the CRNSW Police on 010403 for assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010615:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
Violation of UCMJ, Article 128: Assault consummated by battery.
Violation of UCMJ, Article 134: Drunk and disorderly conduct.
	Award:  Forfeiture of $653.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

011116:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct-commission of a serious offense and misconduct-drug abuse.

011116:	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.

011217:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense and misconduct - drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011120 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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 Applicant claims the tamper proof seal on his urinalysis sample was broken and the seal was not resealed in his presence.  After reviewing the specimen custody documents, it was noted that the Applicants urine sample had been resealed and initialed.  Based on the document review of the Applicant’s record, there is no evidence in the record that the Applicant’s urinalysis result was caused by administrative error (e.g., faulty local chain of custody, evidence of tampering).  Relief denied.

The Applicant is seeking an honorable discharge upgrade so that he can apply for a military commissioning program.  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.  A general 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 one retention warning and one nonjudicial punishment proceeding for violations of Articles 112a (Wrongful use, possession, etc. of controlled substances) and 128 (Assault consummated by battery) of the UCMJ.  For the edification of the Applicant, the Manual for Courts-Martial authorizes the award of a punitive discharge if Articles 112a and 128 are adjudged as part of the sentence upon conviction by a special or general court-martial of the UCMJ.  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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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, Articles 112a (Wrongful use, possession, etc. of controlled substances) and 128 (Assault consummated by battery) of the UCMJ.   .

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 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