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

ex-PRAA, USN
Docket No. ND03-00418

Applicant’s Request

The application for discharge review was received 20030114.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to [left blank].  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Due to the circumstances and conditions of my treatment at Naval Air Station Norfolk, and due to the circumstances of my termination at that facility.  I J_ P_ S_ (Applicant) contend that I was effectively denied rights and protections due to me under the U. M. C. J.
More specifically since my discharge was made contingent upon completion of this program, I should have been allowed consultation.  I should have been afforded the right to confront my accusers; and I should have been granted some form of judicial procedure.  I was granted none of these.”

Additional issues submitted by Applicant’s representative (American Legion):

“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 this application.”

Documentation

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

Applicant’s DD Form 214 (Member 1)
Prohibition on redisclosure of information concerning alcoholism patient
Clinical notes, dated January 14, 2000 – January 31, 2000
Congratulations certificate
One page from Applicant’s service
Letter to Applicant from United States Senate, dated December 1, 2002
Letter from State Veterans Counselor to Senator C_, dated June 10, 2002
Associate in Occupational Studies, dated December 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	951229 - 960317	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960318		Date of Discharge:  981120

Length of Service (years, months, days):

	Active:    02  08  03 (Does not exclude lost time.)
	Inactive:  None

Age at Entry:  34			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  PRAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM

Days of Unauthorized Absence:  7

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:

980826:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 980807, tested positive for cocaine.

981013:	NJP for violation of UCMJ, Article 86 (2 specs): Absence without leave for a total of 6 days, violation of UCMJ, Article 112A (2 specs): Wrongful use of controlled substance.
	Award: Forfeiture of $519 per month for 2 months, restriction for 60 days, reduction to PRAA.  No indication of appeal in the record.

981028:	Civil Conviction:  Virginia Beach General District Court for violation of disturbing the peace.
	Sentence:  Jail for 9 days (time served) and court cost.  [Extracted from Commanding Officer’s letter dated 981111.]

981014:	Medical evaluation for drug abuse found the Applicant to be drug dependent.  

981102:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction, misconduct due to drug abuse and misconduct due to drug abuse rehabilitation failure.

981102:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

981111:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to civilian conviction, and misconduct due to drug abuse rehabilitation failure.  Commanding Officer’s comments (verbatim): In late Spring 1998, PR3 S_ began a marked decline in his performance.  In July he was arrested for assault at the same location for breaking and entering.  This time bail denied.  The charges were eventually dismissed and within three days after his release, the command received an anonymous phone call stating that they had seen PR3 S_ (Applicant) “smoking crack”.  Due to S_’s (Applicant’s) recent behavior coupled with his rating, I felt it necessary to do a urinalysis.  Upon refusal of a consent urinalysis, I ordered it.  The results of the first urinalysis confirmed the presence of cocaine at an extraordinary high level of 321.2772 ng/mL.  While waiting for the results PR3 S_ (Applicant) participated in a random urinalysis.  The results of the second urinalysis confirmed abuse of both marijuana and cocaine and it is this urinalysis upon which NJP and administrative separation are based.  While pending NJP, on 10 Oct 98, drug dealers to whom he was allegedly indebted, beat and stabbed him.  On 13 Oct 98, PR3 S_ (Applicant) went to NJP for two specifications of Article 86 and two specifications of Article 112a.  During mast, he admitted abusing drugs on a daily basis.  On 14 Oct 98, PRAA S_ (Applicant) was medically screened and found dependent on drugs.  He began Level III inpatient rehabilitation on 19 Oct 98 with an anticipated completion date of 13 Nov 98.  However, LT J_ G_ W_, MC, dismissed him from treatment on 23 Oct 98.  His behavior distracted from his treatment as well as others.  He appeared to have used drugs in addition to making inappropriate comments regarding his ability to obtain drugs.  In light of the above information, I most strongly recommend an Other Than Honorable discharge.

UNDATED:	Commander, Naval Base, Norfolk 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 19981120 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.  The Applicant’s issues are without merit.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  The Applicant’s allegations, that he was denied assistance and counseling, do not refute the presumption of regularity in this case.  The Applicant was afforded the appropriate due process during the processing of his case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

Issue 2.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  As this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

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 additional documentation to support any claims of post-service accomplishments at that time.  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 18, effective 12 Dec 97 to 19 May 99, 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