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

ex-SA, USN
Docket No. ND00-01084

Applicant’s Request

The application for discharge review, received 000925, requested that the characterization of service on the discharge be changed to honorable.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  The issue @ hand is I feel instead of being discharged that I should have been offered some help like rehab my enlistment was almost up.  The military did not try to help me with my problem they just kicked me out.  As they lied to me about discharge and told me that it will automatically change is to Honorable at 6 mo.  But that was not true.  And I still need help.

Documentation

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

Letter from Department of Veterans Affairs dated September 15, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	841024 - 850115	COG

Period of Service Under Review:

Date of Enlistment:  850116		Date of Discharge:  880818

Length of Service (years, months, days):

	Active:    03  07  03
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  14			AFQT:  34

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)	Behavior:  3.45 (4)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  BER (2), MUC

Days of Unauthorized Absence:  None

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:

850117:	Applicant briefed on Navy's policy on drug and alcohol abuse.

851002:	NJP for violation of UCMJ, Article 112A (2 specs): Wrongfully use and possess marijuana on 4Sep85.
	Award: Forfeiture of $347 per month for 2 months, extra duty for 20 days, reduction to HR.  Forfeiture for 1 month suspended for 3 months.  Advancement recommendation withheld.  No indication of appeal in the record.

860319:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly Sep85, ashore off duty.  Applicant found not dependent and recommended for Level I treatment.  Inspection urinalysis 4Sep85.  Commanding officer recommended retention.  Comments: HA (applicant) went to CO's NJP on 2Oct85 and was awarded the following: reduction to E-1, forfeiture of $310.20 pay per month for 2 months {1 month's forfeiture to be suspended for 3 months}; and extra duty for 20 days.  Also any advancement recommendation to be withheld.

861011:	NJP for violation of UCMJ, Article 91: Fail to obey a lawful order, violation of UCMJ, Article 92 (2 specs): Disrespect, violation of UCMJ, Article 121: Larceny.
	Award: Forfeiture of $150 per month for 1 month, extra duty for 5 days.  No indication of appeal in the record.

870305:	Retention Warning:  Advised of deficiency (Failure to obey a lawful order and disrespect.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.   Applicant refused to sign counseling.

871210:	NAVDRUGLAB, Great Lakes, IL reports applicant's urine sample received 871207, tested positive for THC.

8XXXX:	Record of counseling: Advised of deficiency (Performance and personal behavior.), notified of corrective actions and assistance available.

880316:	Counseling: Advised of deficiency (Absent for continuous periods of time from work center and failed to report reason to P.O.I.C.), notified of corrective actions and assistance available.  Applicant refused to sign counseling.

880406:	Medical evaluation for drug abuse found no evidence of drug dependency/drug use.  

880428:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, marijuana on 4Dec87.
	Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  No indication of appeal in the record.

880503:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your Commanding Officer's Nonjudicial punishment of 2 October 1985 for wrongful use and possession of marijuana and by your Commanding Officer's nonjudicial punishment of 28 April 1988 for wrongful use of a controlled substance, to wit: marijuana.

880506:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880512:	Medical evaluation:  No evidence of drug dependency or ETOH dependency.

880608:	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.

880701:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

880812:	CNMPC 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 880818 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, the applicant was medically evaluated and it was determined that he was not drug or alcohol dependent, and therefore not qualified for rehabilitation.  The applicant is encouraged to contact his local VA office if he desires rehabilitation treatment or for further information regarding his VA eligibility.  The Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility.  There is no requirement or law that grants recharacterization based solely on the issue of obtaining veteran’s benefits.  This is not an issue for which the Board will grant relief.  

Additionally, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge.  Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general).  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.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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 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