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

FOR OFFICIAL USE ONLY

ex-ATAN, USN
Docket No. ND06-00623

Applicant’s Request

The application for discharge review was received on 20060406.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Convenience of government.”  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 20070110.  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 and reason for 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 29, Dates of Time Lost During This Period, should read:  “040512 – 040513, 040714 - 040730.”  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 Issue:

Propriety – Coerced into waiving his rights 
Propriety – Denied defense counsel
Equity – Family problems

Documentation

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

Applicant’s DD Form 214 (Service 7)
Applicant’s DD Form 293, Block 6 Continuation Sheet, (2 pages)
Applicant’s DD Form 293, Block 8 Continuation Sheet
Report of Medical Examination, dtd September 27, 2001
Prisoner/Detainee Special Request/Authorization, dtd June 4, 2004
Naval Station Norfolk Brig, Medical Disposition form, not dated
Prisoner/Detainee Special Request/Authorization, dtd July 10, 2004
Statement of I_ S_ (Applicant’s grandmother), not dated
Applicant’s change of address, not dated

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
						Inactive:  USNR (DEP)	20010928 - 20011017	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011018		Date of Discharge:  20040730

Length of Service (years, months, days):

	Active:    02  08  24  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  17 days
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 

Education Level:  9				AFQT:  64

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (4)	Behavior:  2.0 (5) 	OTA:  2.40 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly Article 3630620.

Chronological Listing of Significant Service Events: 

010913:	Pre-service enlistment waiver for failure to meet physical standard requirement by CO NRD San Antonio granted. 

010918:	Pre-service enlistment waiver granted for two non-minor misdemeanors (criminal mischief x 1/probation violation x 1).

010928:	Pre-service enlistment waiver granted for drug abuse (cocaine x 1).

040217:	Applicant to UA this date at 0600.

040219:	Applicant from UA (surrendered) this date at 0600 (2 day).

040318:	NJP for violation of UCMJ, Article 86: Unauthorized absence (040217).
	Award:  Forfeiture of $301.00 per month for 1 month, extra duty for 14 days, reduction to E-2.  Reduction to E-2 suspended for 6 months. No indication of appeal in the record.

040318:	Retention Warning:  Advised of deficiency (Violation of the Uniform Code of Military Justice (UCMJ), Article 86 – Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040512:	Applicant to UA this date at 0600.

040513:	Applicant from UA (surrendered) this date at 0915 (1 day).

040714:	Applicant to UA this date at 1000.  

040715:	Letter from FITWINGLANT to COMNAVAIRLANT, request for the Applicant’s administrative separation. [Entry extracted as “REF/A/” from COMNAVAIRLANT message dated 161626Z Jul 04].

040716:	CNPC, directed the Applicant's discharge with an under other than honorable conditions by reason of misconduct, separation code HKK.

040730:	Applicant from UA (surrendered) this date at 0800 (16 days). Amplifying Remarks on Record of Unauthorized Absence NAVPERS 1070/606:   Delivered to civilian authorities on charges and conviction in Juvenile and Domestic Relations District Court, Virginia Beach, Virginia.  Assault and Battery (2 charges), disturbing the peace; violation of protection order.  Ordered to serve 4 months in jail for each charge to run concurrent (12 months with 8 months suspended)(credited time served in brig).  Member discharged in absentia this date.  Authority COMNAVAIRLANT 161626ZJUL04.

Service Record did not contain the Administrative Discharge package.  
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 20040730 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 available 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).

Propriety – Coerced into waiving his rights and denied counsel: The Applicant contends that his discharge should be upgraded because he was coerced into waiving his rights and that he was denied counsel.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The available records contain no evidence of any wrongdoing by anyone involved in the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.

Equity – Family problems: The Applicant contends that his problems are due to a “toxic relationship” with his alcoholic wife.   While he may feel that marital problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further 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 denied. 

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.

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.  In addition to violating UCMJ Article 112a (wrongful use, possession, etc., of controlled substances), the Applicant’s service was marred by a retention warning and a nonjudicial punishment proceedings for violation of Article 86 (unauthorized absence) of the UCMJ.  Violation of UCMJ Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by 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 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.  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 112a (Wrongful use, possession, etc, of controlled substances).

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