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

 ex-OSSN, USN
Docket No. ND00-01071

Applicant’s Request

The application for discharge review, received 000920, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010313.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I feel my discharge was improper because, I was discharged for misconduct that I did not commit.  I was at a new command assigned under limited duty status, who I feel discharged me unjustly, because of that fact.  I was decorated and commended at my other commands while on full duty status.  My service record will show that.

Documentation

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

Copy of DD Form 214
Copy of Drug and Alcohol Evaluation
Copy of Navy Achievement Medal Citation
Copy of Letters of Commendation (3)
Copy of Letter of Appreciation (2)
Copy of Good Conduct Award
Copy of Certificate of Completion (ESWS)
Copy of Enlisted Performance Record (2pgs)
Copy of Enlisted Performance Evaluation Reports (11pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			870805 - 900621	HON
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  900622		Date of Discharge:  940506

Length of Service (years, months, days):

	Active:    03  10  15
	Inactive:  00  05  11

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  69

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (7)	Behavior:  3.82 (8)		OTA:  3.80

Military Decorations:  NAM

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, GCA, 

Days of Unauthorized Absence:  12 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900622:	Reenlisted onboard USS OBANNON (DD-987) for 6 years.

940303:	NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for THC.

940314:	NJP for violation of UCMJ, Article 86: (4 Specs), Spec 1: UA from 940223-940224), Spec 2: UA from 940225-940301, Spec 3: UA from 940302-940303, Spec 4: UA from 940304-940308, violation of UCMJ Article 107: Made false official statement regarding attendance at physical therapy sessions, violation of UCMJ Article 112a: Wrongfully use marijuana on or about 940225.
	Award:  Restriction to Naval Station Mayport, FLorida for 30 days, reduction to E-4.  No indication of appeal in the record.

940322:	NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for THC.

940323:	Medical Officer's evaluation determined applicant not dependent.

940325:	DAAR indicates marijuana abuse as a result of a random urinalysis test, found not dependent, recommended for separation not via VA Hospital.

940331:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse as evidenced by your non-judicial punishment on 940314 and by your violation of the UCMJ, Article 112a as evidenced by NAVDRUGLAB JACKSONVILLE FL 220827Z MAR 94.

940331:  	Applicant advised of his rights and having elected 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.

940407:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

940425:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940506 under other than honorable conditions for misconduct due to commission of a serious offense (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 issue states:  “I feel my discharge was improper because, I was discharged for misconduct that I did not commit.  I was at a new command assigned under limited duty status, who I feel discharged me unjustly, because of that fact.  I was decorated and commended at my other commands while on full duty status.  My service record will show that.”  The record shows the applicant was found guilty at NJP of violation of UCMJ Articles 86(4 Specs UA), Article 107(False Official Statement), and Article 112a(wrongful use of marijuana-confirmed by positive urinalysis 940322).  The violations of Articles 107 and 112a are considered serious military offenses (Articles punishable at Court Martial with punitive discharge).  There is no appeal of the NJP in the record and the Board finds no impropriety in the discharge.  While the applicant’s service record shows various decorations, his documented misconduct outweighed his otherwise creditable service.  Relief is not warranted.

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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