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

 ex-ENFA, USN 
Docket No. ND03-00229

Applicant’s Request

The application for discharge review was received on 20021122.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040408.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was discharged from the U.S. Navy under other than honorable conditions due to the use of drugs.  On the other hand, I never tested positive for any drugs.

Also, I do not have any copies of my military history.  My commanding officer honored me to write this letter upon dismissal of my military duty.  My mother was dieing and died during my punishment on board the USS COMSTOCK LSD-45 in which I explained to my chain of command.  While I was making departure of the ship my commanding officer informed me about this document with all due respect, I appreciate all consideration and cooperation.

I would also like it to be know that I am presently working, and pursuing a career in the medical field, and leading a productive life in society which does not include drugs.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930323 - 930912	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930913		Date of Discharge:  960523

Length of Service (years, months, days):

	Active:    02  08  11
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  ENFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.87 (3)	Behavior:  3.80 (3)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR, BER

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 3630620.

Chronological Listing of Significant Service Events:

960509:	NJP for violation of UCMJ, Article 112A (2 specs): Wrongful use of a controlled substance, LSD and ecstasy.
	Award: Restriction and extra duty for 45 days, reduction to ENFA.  No indication of appeal in the record.

960510:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment of 960509 for violation of Article 112A of the Uniform Code of Military Justice.

960510:	Applicant advised of 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.

960512:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960520:	Substance Abuse Dependency Screen, Medical Dept, USS COMSTOCK:  Referred by legal officer.  Drug – LSD and ecstasy (MDMA).
	History:  21 year old white male admits to using LSD and ecstasy only one time each Feb, Mar 96.  History of marijuana use prior to enlistment.  No abuse or dependency – recreational use, no treatment needed.

960522:	BUPERS 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 19960523 under other than honorable conditions for misconduct due to drug abuse (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).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore determined the Applicant’s discharge proper and equitable.  The evidence, by the Applicant’s own admission that he used illegal drugs, supports the discharge action.  Mandatory processing for separation is required for sailors who abuse illegal drugs and separation under these conditions generally results in characterization of service under other than honorable conditions.  The Applicant’s allegation, that he “never tested positive for any drugs,” does not refute the presumption of regularity in this case or his own admission of drug use.  The record lacks evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service.  An upgrade to an honorable would be inappropriate.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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