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

 ex-ATAN, USN
Docket No. ND00-00983

Applicant’s Request

The application for discharge review, received 000815, 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 AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010209.  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: OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member avers that he never used LSD and only admitted to during so in order to tell the police what they wanted to hear.  He opines that his negative urinalysis of record represents clear and unmistakable evidence that he is telling the truth.  On this basis, he petitions the Board for relief for upgrade of his character of service.

2.  (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to 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
Copy of NAVDRUGLAB Urinalysis Report
Letter of Explanation from Applicant
Copy of Letter of Deficiency (3pgs)
Copy of Letter of Commendation
Copy of Certificate of Completion (Technical Electronic)/Letter of Commendation to Applicant's Parents
Copy of Certificate of Participation (Computer Repair)
Copy of Certificate of Completion (Avionics Technician Common Core)
Copy of Certificate of Completion (Avionics Technician Organizational Level Course, Class A1)
Copy of Certificate of Completion (F14A/B Integrated Avionics System (Initial) Organization Maintenance
Copies of Evaluation Report & Counseling Records (3), (6pgs)
Character Reference Letters (3)
Copies of Character Witness Questionnaires (3), (6pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	960325 - 960912	COG

Period of Service Under Review:

Date of Enlistment:  960913		Date of Discharge:  990830

Length of Service (years, months, days):

	Active:    02  11  18
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  69

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3)	Behavior:  2.66 (3)		OTA:  3.16

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NUC, AFEM 

Days of Unauthorized Absence:  None 

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

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

Chronological Listing of Significant Service Events:

981015:	NAVDRUGLAB JACKSONVILLE, FL. urinalysis report indicates applicant tested negative [Applicant's copy].

990323:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990323:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990422:	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.

990806:	Commanding officer recommended discharge other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer's comments (verbatim):  "On 12 Sep 98 and the early morning hours of 13 Sep 98, ATAN (Applicant) attended a paraty hosted by ATAN R_ and his wife at their home in Virginia Beach at which sevral Sailors attended.  According to the Virginia Beach Police, ATAN (Applicant) and a number of other Sailors admitted taking hits of LSD.  At 0230, a Sailor from VF-41, AN K_, began displaying very erratic behavior after consuming several hits of LSD.  In an attempt to calm K_, several people tried to hold him down, at times using a pillow to muffle the sound of his screams.  Tragically AN K_ died of suffocation at approximately 0645.  ATAN (Applicant) assisted in restraining AN K_ and was subsequently charged with "Manslaughter in the second degree while in a commission of a felony".  In late January 99 the charges against ATAN (Applicant) were dropped.  He was served administrative separation papers for drug abuse and elected his right to a board.  The Board was convened, found misconduct, and recommended ATAN (Applicant) be separated with an Other Than Honorable discharge.  …………………."

990823:	Commander, Navy Region, Mid Atlantic authorized 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 990820 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 applicant’s first issue states:  “(Equity Issue) This former member avers that he never used LSD and only admitted to during so in order to tell the police what they wanted to hear.  He opines that his negative urinalysis of record represents clear and unmistakable evidence that he is telling the truth.  On this basis, he petitions the Board for relief for upgrade of his character of service.”  The Board found no impropriety in the applicant’s statement of LSD use and the use of his statement at the Administrative Board.  The NDRB found the applicant’s issue without merit.  The Board found nothing in the applicant’s service record support this issue and warrant an upgrade.  Relief is denied.

The applicant’s second issue states:  “(Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains t post-service conduct, in assessing the merits of his application.”  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The Board did not find relief warranted based on this issue.

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.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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