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

 ex-HR, USN
Docket No. ND02-01070

Applicant’s Request

The application for discharge review, received 020726, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Misconduct.  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 030424.  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 and narrative reason 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, as submitted

Prior to the documentary discharge review, the Applicant introduced no issues as Block 8 on the DD Form 293 is blank. 

Documentation

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

Standard Form 180 (One partial completed and one blank one)
Applicant's DD Form 214 (Member 4 and 1)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	971025 - 980809	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980810		Date of Discharge:  011120

Length of Service (years, months, days):

	Active:    03  03  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  37

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)	Behavior:  2.50 (2)		OTA:  2.67

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:

000626:	Retention Warning:  Advised of deficiency (On 26Jun00, Applicant was on duty as the Medical Admin Watch until properly relieved.  Duty was to begin at 0645.  He appeared at GAS-28 at 0725 unshaven.  Applicant has a documented history of being UA and unshaven on prior instances.  On 8Nov99, he was UA for approximately 3 days from NSHS Portsmouth, VA.  On 7Apr00, he was late returning from leave.  On 14Apr00, he was unshaven during a personnel inspection.)   Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000810:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Correctional custody for 30 days, reduction to HA.  No indication of appeal in the record.

010604:	Applicant admitted into Intensive Outpatient treatment program.

010622:	Applicant transferred to Outpatient treatment program.

010629:	Applicant successfully completed treatment with a poor prognosis.  Applicant briefed on continuing care plan.

010716:	NAVDRUGLAB, Jacksonville, FL reported Applicant's urine sample, received 010711, tested positive for THC.

010803:	Substance Abuse Screening: Applicant found to be an alcohol rehabilitation treatment failure, and does not meet criteria for cannabis abuse or dependency.

010913:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 95:
	Specification: Resist apprehension on 010513.
Charge II: violation of the UCMJ, Article 112a:
Specification: Wrongfully use marijuana between 010606 and 010706.
Charge III: violation of the UCMJ, Article 128:
Specification: Assault Sgt by striking him with a closed fist on 010513.
Charge IV: violation of the UCMJ, Article 134 (2 specs):
Specification 1: Wrongfully communicate to Sgt a threat to kill on 010513.
Specification 2: Drunk and disorderly on 010513.
	Findings: to Charge I, II, III and IV and specifications thereunder, guilty.
	Sentence: forfeiture of $695 per month for 2 months, hard labor without confinement for 30 days.
	Sentence approved and ordered executed.  [Date estimated.]

011026:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct, and alcohol rehabilitation failure.

011026:	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.

011029:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), misconduct due to a pattern of misconduct, and alcohol rehabilitation failure. 

011108:	Commander, 2d Marine Aircraft Wing 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 011120 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 introduced no decisional issues for consideration by the Board. 
There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  In accordance with the instructions for completing the DD Form 214 contained in the NAVMILPERSMAN, the Board recommended that the Applicant’s DD Form 214 be corrected to read “MISCONDUCT,” vice “MISCONDUCT DUE TO DRUG ABUSE.” The Applicant’s record of drug abuse, misconduct and alcohol rehabilitation failure fully warrants discharge under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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