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

FOR OFFICIAL USE ONLY

ex-SN, USN
Docket No. ND06-00643

Applicant’s Request

The application for discharge review was received on 20060413.  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 drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s Remarks:  “I am still clean and sober with 3 years and 9 months clean and sober.  I would like an opportunity to work for the government but I have to have an honorable to do this.”  

Documentation

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

Applicant’s DD Form 214  (Service 7)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000815 - 20000830	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000831		Date of Discharge:  20021101

Length of Service (years, months, days):

	Active:    02  02 01  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  4 days
	Confinement:		  None

Age at Entry:  30

Years Contracted:  4 

Education Level:  12				AFQT:  44

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (3)	Behavior:  1.7 (3)		OTA:  3.00 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

010107:	NJP for violation of UCMJ, Article 86:  Unauthorized absence
	Award:  Forfeiture of 1 days pay for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

020425:	Applicant to unauthorized absence on 020425.

020429:	Applicant from unauthorized absence on 020429 (3 days) 

020501:	Medical Department USS MOUNT WHITNEY (LCC 20) evaluation:  Single active duty female referred by her DIV-O 2 degrees to concerns of depression.  Member has mother complains of terminal illness and went UA for 4 days because of feeling so depressed.  Relates suicidal thoughts but no plans or any actions taken.  Feel s some what better going back to work.  Relates depressed feelings doesn’t want to get out of bed especially while she was UA.  Has friends to confide in that are supportive has seen chaplain.  Wants to visit her mom but feels she does not have the funds to get to California to see her.
	A:  Grief reaction/depression
	P:  Paxil 20mg
	     Counseling with FSC
	     Work with Department to arrange flight home & research funding  
      support
	     Promises to follow up if suicidal

020509:	NAVDRUGLAB, Jacksonville, Florida, reported Applicant’s urine sample, received 020506, tested positive for cocaine.

020515:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Specification:  In that SN K_ A. M_ (Applicant), U. S. Navy, USS MOUNT WHITNEY, on active duty, did, on or about 020425, without authority, absent herself from her unit, to wit:  USS MOUNT WHITNEY, located at Naval Station Norfolk, Virginia, and did remain so absent until on or about 020429.
Violation of UCMJ, Article 112: Wrongful use of a controlled substance.
Specification:  In that SN K_ A. M_, U. S. Navy, USS MOUNT WHITNEY (LCC/JCC-20), on active duty, did, in the Hampton Roads area Virginia, on or about 020429, wrongfully use cocaine.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

020524:	Report of Medical Assessment:  Patient awaiting LEVEL III rehabilitation for etoh, drugs.

020614:	Naval Medical Center Addictions Rehabilitation Dept. Norfolk, VA evaluation:  Single 32 year old female patient in their 3rd week of alcohol/drug rehabilitation doing well in treatment.  They present to Medical requesting Naltrexone.  

020625:	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 drug abuse as evidenced by drug incident during current enlistment.  

020711:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

020930:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

021011:	Commanding Officer, recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse as evidenced by drug incident during current enlistment.  Commanding Officer’s comments:  “SN M_ (Applicant) was well aware of the Navy’s “Zero Tolerance” policy when she chose to use cocaine while on active duty.  While she has successfully completed Level III treatment, and is active in her continuing care program, her behavior represents an unacceptable detriment to good order and discipline, and demonstrates that she has no potential for further useful Naval service.”

021017:	Commander, Amphibious Group TWO, granted authority to discharge the Applicant with a general (under honorable conditions) by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021101 by reason of misconduct due to drug abuse (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 is requesting a characterization of discharge upgrade 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.  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 2 nonjudicial punishment proceedings for violations of Articles 86 (Unauthorized absence) and 112a (Wrongful use, possession, etc. of controlled substances) of the UCMJ.  For the edification of the Applicant, the Manual for Courts-Martial authorizes the award of a punitive discharge if Article 112a is 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 her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant states “I am still clean and sober with 3 years and 9 months clean and sober.  I would like an opportunity to work for the government but I have to have an honorable to do this.”  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 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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.

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