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

 
ex-BTFA, USN
Docket No. ND03-01343  

Applicant’s Request

The application for discharge review was received on 20030808.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040526.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I BTFN O_ (Applicant) was on a Unitaus Cruise Circle navigating South America working with South American Navies.  I was elected to work with the HT in the HT shop.  BTFN P_ from 1 Fire and I, BTFN O_ (Applicant) 2 Fire went to work in H T Shop aboard the Josephus Daniels CG 27.  One of the HT did use drugs and smuggled them on board and was caught in a urinalysis drug screen.  In order to cover his tracks, he put drugs in the sugar at the coffee mess in the HT Shop.  BTFN P_, all of the HT and I, BTFN O_ (Applicant) all tested positive for drugs on the next urinalysis test.  Command told us that we were responsible due to the fact that the drug was in our system, which at the time I believed was a very good argument.  We did not have a defense with a zero tolerance policy.  At Captain’s Mass, I received a OTH Discharge.  At the time, I was a newlywed and had been gone for 27 months out of 24.  All was said and done and I just wanted to go home.  This unfair discharge has haunted me and mine in civilian life for years.
I am respectfully requesting you to change my discharge status to Honorable - PLEASE!  Thank you in advance for your time and consideration.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881129 - 881213	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  881214		Date of Discharge:  910725

Length of Service (years, months, days):

	Active:    02  07  12
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rate:  BTFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.00 (2)		OTA:  2.60

Military Decorations:  None

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

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:

881221:	Applicant briefed on Navy's policy of drug and alcohol abuse.

900516:	Retention Warning:  Advised of deficiency (failure to complete 3 months PQS in prescribed time frame), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901018:	NJP for violation of UCMJ, Article 92:  On or about 900928, on active duty, between the hours of 0800 and 1000, member was derelict in performance to take feedwater soundings and 2C MFP Parameter readings as it was his duty to do so.  Violation of UCMJ, Article 107:  On or about 900928, 0900, on active duty, member was deceive, sign an official record, to wit;  Feedwater sounding log.
Award:  Forfeiture of $100 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

901018:	Retention Warning:  Advised of deficiency (Violation of Art 92, on or about 0800 and 1000, on active duty, 900928, derelict in the performance of those duties in that failed to take Feedwater soundings and 2C MFP parameter readings, as it was his duty to do so.  Violation Art 107: On or about 900928, 0900, on active duty, mbr was deceive, sign  an official record, to wit, Feedwater sounding log onboard USS JOSEPHUS DANIELS ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910410:	Drug and Alcohol Abuse Report:  Cocaine abuse, less than monthly, ashore-off duty.  Random urinalysis on 910330.  Physician and DAPA found Applicant not dependent and recommends separation.  Commanding Officer recommends separation.  Comments:  Past and present work record reflects average performance.  SNM displays no potential for continued naval service.

910503:	NJP for violation of UCMJ, Article 112A:  On active duty, did, in the vicinity of Cartagena, Columbia, on or about 910330, wrongfully use of cocaine, a controlled substance.
	Award:  Forfeiture of half-pay for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

910513:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to wrongful use of a controlled substance (cocaine).

910513:	Applicant advised of rights and having elected not to consult counsel certified under UCMJ Article 27B, elected to waive all rights for this separation.

910513:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments:  In accordance with OPNACINST 5350.4 and in support of the Navy’s Zero Tolerance Policy on Drugs, FA O_ (Applicant) is being processed for separation.  FA O_ (Applicant) has consistently been a drain of command resources due to his poor performance and negative influence on his peers.  The man is not salvageable, and is clearly sub-caliber for continued service in the United States Navy.  Highly recommend FA O_(Applicant) be discharged as a convenience to the government.

910514:	Medical evaluation for drug abuse found the Applicant not to be Physiologically/Psychologically dependent on cocaine.

910718:	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 19910725 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.  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 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.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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 of this time, the Applicant has not provided any documentation for the Board to consider.  Therefore, no relief is appropriate.

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 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, 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