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

    ex-AOAN, USNR
Docket No. ND04-00007

Applicant’s Request

The application for discharge review was received on 20030926.  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.  Subsequent to the application, the applicant obtained representation by Disabled American Veterans. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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.  “Dear Sir:

During the last four years of my military service I was a 4.0 sailor.  My career was going good for me until I got married when stationed a NAS Dallas my marriage begin to fall apart.  My wife, now exwife was going through a bitter divorce.  I was having party for my son at home.  He invites his mother to the party.  We were drinking at the time during the party.  At some point she manage to put some drug into my drink.  I felt funny at the time but I thought it was the effect of the alcohol.  A few days later I underwent a random urine test which I can up positive for cocaine, my wife at the time was trying everything to make my life a living hell.  She admitted to me and NAS Dallas Legal Service what she had did.  It was no help to me at my Administrative Board.  I was discharge from the military after serving over fourteen years in the U.S. N.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General, Under Honorable Conditions Discharge to that of Honorable.

The FSM served on active service from August 2, 1976 to October 15, 1991 at which time he was discharged due to Misconduct-Drug Abuse. 

The FSM and this service contend the current discharge is improper because the deficient Court Martial.  The Convening Authority capriciously denied the respondent of a complete hearing of the evidence and condemned him to an unfair disposition of the matter.

There is evidence of record that the estranged spouse admitted to spiking FSM L_’s (Applicant’s) drink during a party, but it was given no weight.  Additionally, with this evidence of record the convening authority could have subpoenaed her to provide testimony and further bypassing the guidelines of reference (c) OPNAVINST 5350.4B for no apparent reason.

With the affidavit from FSM L_’s (Applicant’s) ex-spouse and the testimony from six senior enlisted personnel, who attested to the FSM’s integrity, honesty, and good fourteen years of service, the Court should have been compelled to follow regulatory guidelines for an equitable hearing, that we believe the out-come would have reinstated FSM L_ (Applicant) into active service instead of the OTH discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.   See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, if a favorable decision cannot be provided, we as the representative ask for a personal appearance on this matter to attempt to resolve this long standing impropriety.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully,

Documentation

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

Letter from Applicant
Letter of Commendation dated June 19, 1990
Letter of Appreciation
Letter of Appreciation dated December 29, 1986
Letter of Appreciation dated January 16, 1987
Letter of Appreciation dated December 15, 1986

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	760719 - 760801	COG
	Active:   USNR		760802 – 790801	HON
Inactive: USNR 		760802 - 760802	COG
Active:   USN			790803 - 830714	HON
Active:   USNR		830715 - 870424	HON

Period of Service Under Review:

Date of Enlistment:  870424		Date of Discharge:  911015

Length of Service (years, months, days):

	Active:    04  05  22
	Inactive:  None

Age at Entry:  22			Years Contracted:  3 (34 months extension)

Education Level:  12			AFQT:  36

Highest Rate:  AO2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)	Behavior:  4.00 (3)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE”E”, NDSA, GCA, AFRM

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:

870424:	Reenlisted at RAIMD, NAS New Orleans, LA for 3 years with a 34 month extension.

910102:	NAVDRUGLAB [GREAT LAKES, IL], reported Applicant’s urine sample, received 901219, tested positive for [cocaine].

910320:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Navy Drug Lab message 020800 JAN 91.

910322:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910703:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910808:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

911003:	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 in absentia 19911015 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 available 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 NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that drug abuse was the reason the applicant was discharged.  No other Characterization of Service could more clearly describe why the applicant was discharged.  To change the Characterization of Service would be inappropriate.  Relief denied.

Issue 2.  The applicant’s counsel stated that the discharge was improper because the
Convening Authority capriciously denied the applicant of a complete hearing (Court-
Martial) of the evidence and condemned him to an unfair disposition of the matter.  On
910322 the applicant was advised of his rights and consulted with counsel certified
under UCMJ Article 27B.  The command elected for the Applicant to appear before an
Administrative Discharge Board.   The Administrative Discharge Board, based upon a
preponderance of the evidence and by unanimous vote, found that the Applicant had
committed misconduct due to drug abuse, that the misconduct warranted separation, and
recommended discharge under other than honorable conditions.  There is no evidence of
impropriety or inequity in the administration of the Administrative Discharge Board.
Relief denied.

When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by the use of a controlled substance, which is a violation of article 112a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 or any other evidence relating 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), effective 15 Aug 91 until 04 Mar 93, 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