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

FOR OFFICIAL USE ONLY

ex-RMSA, USN
Docket No. ND06-00650

Applicant’s Request

The application for discharge review was received on 20060413.  The Applicant requests that the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Hardship.”  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  Subsequent to the application, the Applicant requested a documentary record discharge review in lieu of a personal appearance hearing.  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 and the reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I -  ISSUES AND DOCUMENTATION

Decisional Issues:

Equity:  Isolated incident

Equity: Post Service

Equity: Youth and Immaturity

Equity:  Quality of service

Documentation

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

Ltr from Applicant, dtd March 1, 2006
Ltr from Department of Veterans Affairs, P_ C_, Women Veterans Coordinator, undated
Ltr from Applicant, dtd May 01, 1997  (3 pages)
Character Reference ltr from P. D. H_, RMCS (SW)USN, dtd June 6, 1996
Character Reference ltr from L_ K. F_, undated
Applicant’s DD Form 214  (Member 1)  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19950313 - 19950905	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950906		Date of Discharge:  19960702

Length of Service (years, months, days):

	Active:    00  09  27  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  73

Highest Rate:  RMSA

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):  National Defense Service Medal 

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

960517:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960513, tested positive for THC.

960522:	NJP for violation of UCMJ, Article 112a.
	Specification:  In that RMSR R_ D. T_ (Applicant), U. S. Navy, NCTAMS WESTPAC Guam, on active duty, did, between 1-7 May 1996, wrongfully use marijuana.
Award:  Forfeiture of $220.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

960522:	Applicant notified of intended recommendation for discharge with the characterization of service under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by conviction at Commanding Officer’s NJP on 960522 for wrongful use of marijuana.

960522:	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.

960528:	Drug and Alcohol Abuse Report:  Marijuana abuse determined by unit sweep.  Physician determined that Applicant was not dependent and not eligible for rehabilitation.  Processing for separation.  Separate from Service not via VA Hospital.  Disciplinary action: NJP.

960530:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by conviction at Commanding Officer’s NJP on 960522 for violation of Article 112a, UCMJ, wrongful use of marijuana.  Commanding Officer’s comments:  “SNM tested positive after providing sample during check in process of the Command.  Prior to Commanding Officer’s Mast, SNM submitted a statement in which she admitted using marijuana prior to arriving on Guam.  And thought it would be out of her system by the time she got here.  Recommend she be separated under other than honorable conditions.”

960613:	BUPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
960620:	NCT Primary Care, Medical Evaluation:  “18 year old female undergoing administration separation for marijuana use.  Used on 1 May with UDS on 6/7 May 96.  Patient seldom drinks ETOH but became drunk at her going -away party and decided to try the drug.  Denies any previous use of marijuana or other drugs.  Denies ETOH use/abuse of significant extent in past.  Patient denies family ETOH/Drug abuse problem.
	A:  Immature and thoughtless since episode marijuana use.  
	      Single episode ETOH abuse.
	P:  Does not require nor will benefit from CAAC LEVEL III OR II.   She has /exhibits understanding of problems with this incident even LEVEL I most likely not useful.”

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 19960702 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).  

Equity – Isolated incident:  The Applicant contends that the discharge was improper because it was based on one isolated incident in approximately 7 months of service with no other adverse action. 

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which she was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers her discharge proper and equitable.  Relief denied.

Equity – Post service:  The Applicant contends that her discharge was improper due to her ability to pass a Top Secret Security Clearance and considering what she has accomplished since she was discharged. 

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.

Equity – Youth and immaturity:  The Applicant contends that the discharge was improper due to her age, her separation from her family, and that she did not know how to deal with the “it” at the time of the misconduct.  

While the Applicant may feel that her youth, immaturity, and separation from her family were the underlying causes of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

Equity – Quality of service:  The Applicant contends that her discharge was improper due to the fact that she received awards, excelled academically, and received character references from her co-workers.

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 a nonjudicial punishment proceeding for violation of Articles 112a of the UCMJ.  Violation of UCMJ Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a special or general court martial. 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 denied.

For the edification of the Applicant, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.   Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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, possession, etc., 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