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

     

 ex-SR, USNR
Docket No. ND99-00865

Applicant’s Request

The application for discharge review, received 990610, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed a private counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Applicant's discharge was improper.

2.  Adequate rehabilitative efforts were not made.

3.  The Commanding Officer had no basis to conclude rehabilitation unlikely.

4.  Applicant's retention in the Navy was prejudiced by reprisal & coercion.

5.  Applicant's legal representation was inadequate and negligent.

6.  The severity and lasting impact of applicant's OTH discharge is not equitable or just.

Documentation

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

Legal brief containing statement of facts, statement of material contentions, and arguments signed by applicant's representative
Summary of application
Copy of DD Form 214
Copy of order for change of name dated June 30, 1989
Sixty-two pages from applicant's service record
Letter to Commanding Officer, USS BARBEY from applicant's parents
Letter to applicant's parents from Member of Congress dated June 21, 1984 with enclosed response
Letter from applicant, undated
Letter from applicant's parents
Letter from applicant's brother dated February 10, 1999
Character/job reference from President, RLH Engineering, Inc dated March 1, 1999
Letter of reference from BM1
Letter of reference from BM3
Letter of reference from BM2

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  810611		Date of Discharge:  840629

Length of Service (years, months, days):

	Active:    02  11  27
	Inactive:  00  00  21

Age at Entry:  23			Years Contracted:  8

Education Level:  10 GED			AFQT:  34

Highest Rate: SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.05 (2)	Behavior:  3.40 (2)	OTA:  3.45

Military Decorations:  None

Unit/Campaign/Service Awards:  SSR, Letter of Commendation 

Days of Unauthorized Absence:  4 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

810703:	Applicant ordered to active duty for 36 months in the Active Marine Program.

830214:	Applicant to unauthorized absence, 0600, 14Feb83.

830218:	Applicant from unauthorized absence 1830, 18Feb83 (4 days/surrendered).

831216:	Substance abuse report:  Applicant unavailable for further information.  Evaluation pending.  Urinalysis October 1983.  Commanding officer recommended retention.  Comments:  SNM's performance has declined in recent months; he has, however, potential for further naval service.  After evaluation by medical officer he will be screened for NDSAP.  No prior NJP.  No civil arrests.  Additional information extracted from message 092045Z Jan84:  Applicant does not admit to drug usage.  He claims to have injested a "doctored drink".  SAC determined applicant is not dependent and recommends Level I treatment.

840103:	NJP for violation of UCMJ, Article 134: Use of amphetemine/ methamphetemine/cocaine on16Dec83.
	Award:  Forfeiture of $50 per month for 2 months, restriction and extra duty for 30 days, reduction to SR.  No indication of appeal in the record.

840105:	Retention Warning: Advised of deficiency (Repeated military infractions, performance not considered satisfactory due to your continued involvement of a discreditable nature with military authorities and drug abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

840326:	NAVHOSP, San Diego, CA reported urine sample received 16Mar84 tested positive for cocaine.

840326:	CAAC consult:  Re-evaluation of ETOH and drug consumption.  Already been seen by NASAP and CAAC.  It was recommended that applicant be followed up by VA hosp.  Since this applicant is having a very short time of A/D I do not think that ARS would be beneficial at this time, nor di______  __.  One wonders if this applicant' is a good candidate for NDRC or ARS since he has not made any efforts to control his EOTH and drug consumption.  Strongly recommend admin separation and applicant should be locally counseled by command's SAC or drug/ETOH advisor/counselor.

840405:	Substance Abuse Report: Cocaine abuse, less than monthly Feb84-Mar84, ashore off duty.  Urinalysis March 84 (positive urinalysis while on 4 by 4 urinalysis program.  CAAC found applicant dependent and recommends separate via VA hospital.  Commanding officer recommends separation.

840405:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by one drug related nonjudicial punishment and one positive urinalysis under the drug surveillance program.

840409:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

840515:	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 the misconduct warranted separation, and recommended discharge under other than honorable conditions.

840607:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

840616:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

840625:	Applicant no longer desires VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 840629 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In response to the applicant’s issue 1 that the “applicant’s discharge was improper”, the Board found that the discharge was proper.  The applicant tested positive for drugs on two separate occasions.  He was given all his proper rights and due process. A Commanding Officer may make the determination to begin processing for drug abuse (use) after only one positive urinalysis.  

In the applicant’s issues 2 and 3, the Board found that the applicant did have the opportunity to have rehabilitative VA treatment, but declined it.  

In the applicant’s issue 4, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. 

In the applicant’s issue 5 that the “legal representation was inadequate and negligent” this is a non-decisional issue for the Board.  The Board is directed to review the propriety and equity of an applicant.  The Board found that the discharge was both proper and equitable based on the severity of the charges against the applicant.  The Board found that the applicant was given his proper rights, therefore no relief will be granted.

In the applicant’s issue 6, the applicant states that “the severity and lasting impact of applicant's OTH discharge is not equitable or just.”  The Board found that the discharge is equitable.  The applicant’s service was accurately characterized as having been served under other than honorable conditions.  The applicant was positive on a urinalysis test for cocaine on 2 separate occasions.  Discharges for misconduct due to drug abuse are normally under other than honorable conditions, as was the case for the applicant.  No relief will be granted on the basis of this issue.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 4/84, effective 
25 Apr 84 until 16 Sep 84, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street, SE Rm 309
		Washington, D.C.  20374-5023