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

FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00685

Applicant’s Request

The application for discharge review was received on 20060426.  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 “Medical/RE-3.”  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 20070208.  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 General (Under 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:  “03MAY19 to 03JUN13.”  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;

The Applicant claims the drug test results were inconsistent.  

The Applicant believes the punishment was not equal to the offense.

The Applicant is requesting an upgrade for employment reasons.

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)	20011220 - 20020220	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020221			Date of Discharge:  20031029

Length of Service (years, months, days):

	Active:    01  08  09 (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  25 days
	Confinement:		  None

Age at Entry:  34

Years Contracted:  4 (12-month extension)

Education Level:  10 Non-traditional education	AFQT:  00

Highest Rate:  MMFN

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):

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

Chronological Listing of Significant Service Events: 

030123:	NJP for violation of UCMJ, Article 91 (5 specs): Disrespect toward a petty officer.
Violation of UCMJ, Article 92: Dereliction in the performance of duties.
	Award:  Forfeiture of $400.00 per month for 1 month ($200.00 suspended for 6 months), correctional custody for 30 days.  No indication of appeal in the record.

030123:	Retention Warning:  Advised of deficiency (91: disrespect toward a petty officer (5 specs).  Article 92: dereliction of duty; and Article 128: simple assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030519:	Applicant to unauthorized absence (from TPU) at 0730.

030613:	Applicant from unauthorized absence at 0900 (25 days/surrendered).

030623:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030618, tested positive for THC.

030904:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of pattern of misconduct, commission of a serious offense and drug abuse (command directed).

030904:	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 and to submit a statement.

030911:	Applicant declined any screening or treatment.

031007:	Commanding Officer, recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense, misconduct due to pattern of misconduct and misconduct due to drug abuse.

UNDATED:	Commander, Navy Region, Mid-Atlantic, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to 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 20031029 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 claims the drug test results were inconsistent, the charge was unfair and the punishment was not equal to the offense.  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 91 (Disrespect toward a petty officer) and 92 (Dereliction in the performance of duties) of the UCMJ.  The Applicant also tested positive for THC a controlled substance.  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 is requesting an upgrade for employment reasons.  For the edification of the Applicant, the Naval Discharge Review 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 this case is not granted.

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 91 (Disrespect toward a petty officer) and 92 (Dereliction in the performance of duties).

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