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

ex-SA, USN
Docket No. ND01-00031

Applicant’s Request

The application for discharge review, received 001010, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American  Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329.  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

1. (Equity Issue) His violations of the UCMJ notwithstanding, the former member opines that his overall service record warrants discharge under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provisions 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
Eighteen pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	850822 - 851008	COG

Period of Service Under Review:

Date of Enlistment:  851009		Date of Discharge:  870605

Length of Service (years, months, days):

	Active:    01  07  27
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  28

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.00 (2)		OTA:  3.30

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 – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

851015:	Applicant briefed on Navy's policy on drug and alcohol abuse.

851015:	Retention Warning:  Advised of deficiency (4th Class swimmer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

861224:	NJP for violation of UCMJ, Article 112A: Use of controlled substance.
	Award: Forfeiture of $372 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

861224:	Applicant directed to give two urine samples per month for a period of six months.

870122:	Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, Unknown - 12/86, less than monthly.  Urinalysis inspection Dec86.  SAC found applicant not dependent and recommended Level II treatment.  Commanding officer recommended retention and refer to CAAC, Level II.  Comments: SN (applicant) exhibits outstanding potential for future naval service, NJP's and punishment 24Dec86, viol UCMJ Art 112A, use of controlled substance.  Awarded 45 days extra-duty and rest, forf of $372.00 ppm x 2 and reduction in rate to E-2 (of which forf and reduction in rate were suspended 6 months).  Civil arrest: none.

870309:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   Recommended for Level I.  

870316:	Screened by CAAC and found applicant not to be psychologically dependent on cocaine but would benefit from a Level I program.

870506:	Vacate suspended forfeiture and reduction awarded at CO's NJP of 24Dec86.

870506:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your wrongful use of controlled substances to wit: cocaine.

870506:  	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.

870515:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim): Based on the information contained above, it is recommended that SA (applicant) be separated with an other than honorable conditions discharge by reason of misconduct due to drug abuse.  Due to his continued misconduct and total disregard for his personal and subsequent military responsibility, his retention would not be in the best interest of the Navy.  In an effort to assist SA (applicant), he was counseled by the Executive Officer on numerous occasions as well as members of his chain of command concerning documented misconduct, drug abuse and overall poor military performance.  His performance while serving aboard this command has been absolutely unsatisfactory since his initial CO's NJP and has been contrary to good order and discipline.  In addition to his 24 December 1986 drug incident, SA (applicant) screened positive for cocaine on 17 March 1987 and again on 2 April 1987 while participating in the Command Drug Surveillance 2 x 6 Program.  His failure to act responsibly towards himself and shipmates far outweighs any advantage of his retention.  He has totally disregarded the Navy's "Zero Tolerance" Drug Policy.  It is therefore recommended that he be administratively separated from Naval Service by reason of misconduct due to drug abuse.  As indicated in enclosures (5) and (6), subject named member does not require medical treatment and/or rehabilitation for drug abuse.

870602:	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 870605 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 applicant’s first issue states:  “(Equity Issue) His violations of the UCMJ notwithstanding, the former member opines that his overall service record warrants discharge under honorable conditions.”  The NDRB found the applicant’s Other Than Honorable discharge accurately characterizes the applicant’s service.  The record shows that repeated attempts were made by the Navy for the applicant, he refused to abide by the most basic requirements of service.  The record shows the applicant was a repeated drug offender.  The applicant failed to provide any post service documentation to demonstrate he is no longer using drugs.  Relief is denied.

The applicant’s second issue states:  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.”  The applicant failed to provide any post service documentation to support an upgrade based on ref (D).  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective 
15 Dec 86 until 14 Jun 87, 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