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

 ex-SR, USN
Docket No. ND00-00308

Applicant’s Request

The application for discharge review, received 000105, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the American  Legion as his representative on the DD Form 293.

Decision
 
A documentary discharge review was conducted in Washington, D.C. on 001005.  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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) This former member avers that his UOTHC discharge is to harsh.  While he did violate UCMJ, Art. 112a, he proffers that his diagnosed major depression, post traumatic stress disorder and struggle with his sexual orientation sufficiently mitigated his misconduct to warrant separation under honorable conditions.

2.  (EQUITY ISSUE)  This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to  his post-service conduct, in assessing the merits of his application. 

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970426 - 970702	COG

Period of Service Under Review:

Date of Enlistment:  970703		Date of Discharge:  980407

Length of Service (years, months, days):

	Active:    00  09  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  68

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

980324:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana between 12Jan98 to 12Feb98.
	Award:  Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

980324:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all punishment under the UCMJ in your current enlsitment.

980324:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980325:	Applicant was offered in-patient alcohol rehabilitation treatment and declined treatment.

980325:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

980402:	Commander, Naval Training Center, Great Lakes, IL directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980407 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).

The Board found that the applicant was in his second enlistment for 6 months when he tested positive during a urinalysis for marijuana.  In the applicant’s issue 1, the applicant states he was diagnosed with a major depression, PTSD and struggling with his sexual orientation although he provides no documentation to support these claims.  Regardless of these claims, the applicant is accountable for his actions.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Therefore, no relief will be granted based on this issue. 

In response to the applicant’s second issue, the applicant has provided no documentation of good character and conduct for the Board to consider a recharacterization based on his post-service conduct, therefore relief is denied.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

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