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

    ex-AOAR, USN
Docket No. ND04-00073

Applicant’s Request

The application for discharge review was received on 20031014.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed a civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040713.  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

Issues submitted by Applicant’s counsel/representative (Civilian Counsel):

1.  “A.  Mr. W_'s (Applicant) Other Than Honorable Discharge Was Unjustified Because it Was Based on One Single Positive Test Result for a Controlled Substance.

Mr. W_'s (Applicant) discharge was inequitable because it was based on one single positive test for a controlled substance.  Prior to that test, other tests had revealed that he is not a drug user.  Other than the single positive test for a controlled substance, Mr. W_ (Applicant) had no prior military nor civilian discipline of any sort and had proudly served the United States Navy without incident for over two years.”

2.  “B.  The Advisements Mr. W_ (Applicant) Received Regarding the Possible Consequences of a Single Positive Test Result Were Misleading.

Mr. W_ (Applicant) was misled as to the severity of consequences related to assuming the punishment for a positive result on a controlled substance test.  Because he was given only a “nonjudicial punishment,” of a pay decrease and fines, he did not think that the single positive test would actually result in an other than honorable discharge.  The Administrative Board Procedure Letter dated March 13, 1998, stated that an other than honorable discharge would be the absolute least favorable characterization of service in his case.

By stating that an other than honorable discharge would be the least favorable characterization of my case, the Administrative Board insinuates that there were other more favorable possible characterizations of his case.  He thought that he would receive one of these more favorable characterizations because an independent licensed physician determined that he did not have a substance abuse problem.  Despite that finding, it appears that no more favorable characterizations of Mr. W_'s (Applicant) case were ever even available.”

3.  “C.  No Weight Was Given to the Recommendations of the Independent Licensed Practitioner in the Navy’s Decision to Relieve Mr. W_ (Applicant) with an Other Than Honorable Discharge.

The March 20, 1998, memorandum from the Commanding Officer, Naval Hospital Pensacola, Florida revealed that Mr. W_ (Applicant) is not a drug abuser.  That report stated, “Subsequent to the counselor screening, member was evaluated by a Licensed Independent Practitioner (a physician) and does not meet references (b) and (c) criteria for a diagnosis of alcohol or drug abuse/dependence.” The Commanding Officer’s recommendation in that report stated, “Recommend member be returned to duty, not in need of counseling, education, or rehabilitation for alcohol or drug dependence/abuse problems.” (Emphasis added).  If the licensed independent practitioner recommended that Mr. W_ (Applicant) return to active duty, an other than honorable discharge could not have been the most appropriate recourse.”

4.  “D.  Although Mr. W_ (Applicant) Elected to Obtain Copies of Documents Forwarded to the Chief of Naval Personnel Supporting the Basis for the Proposed Separation, It Is Impossible to Receive All Relevant Documents.

Upon requesting a copy Mr. W_'s (Applicant's) entire military record in order to ensure the veracity of the results demonstrating that he tested positive for a controlled substance.  I discovered that there is an important document in his file which is completely unreadable.  That page is simply stamped, “BEST DOCUMENT AVAILABLE.”  Although the military might have done their best to provide me with the best copy available, Mr. W_ (Applicant) is severely prejudiced by an inability to examine all of these documents.  It may be that the entire content of that page is false.”

Documentation

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

Cover letter from Applicant’s counsel, dated September 30, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960104 - 960123	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960124		Date of Discharge:  980403

Length of Service (years, months, days):

	Active:    02  02  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  AOAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

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

Days of Unauthorized Absence:  None

*No marks found in service record.

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:

980122:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 980113, tested positive for cocaine.

980306:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine.
	Award:  Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to AOAA.  No indication of appeal in the record.

980313:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all incidents of drug abuse in your current enlistment.

980313:	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.

980320:	Drug and Alcohol Abuse Report: Cocaine abuse.  Random urinalysis 980128.  Physician found Applicant not dependent and recommended separation.  Comments: This incident positive urinalysis for cocaine.  SNM does not meet the criteria for drug abuse or dependence.  SNM has no potential for further useful service.  Recommend handle in accordance with 5350.4B.

980320:	Medical evaluation for alcohol/drug abuse/dependency found the Applicant not alcohol or drug abuse/dependent.

980325:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments:  [In my opinion, he has no potential for future active honorable naval service; therefore, I recommend separation with a discharge under Other Than Honorable conditions by reason of misconduct due to drug abuse.]

980326:	Chief of Naval Education and Training 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 19980403 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.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

Issue 2.  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 nonjudicial punishment for a violation of Article 112a.  The statements by the Applicant’s counsel, that the Applicant thought he would receive a more favorable characterization, are not supported by the record.  There is no evidence that the Applicant was not appropriately counseled or provided all due process.  Therefore, the Applicant’s submissions do not mitigate the Applicant’s conduct, which forms the primary basis for determining the character of his service.  This conduct 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.

Issue 3.  The Applicant’s counsel contends that, because the Independent Practitioner recommended a return to active duty, “an other than honorable discharge could not have been the most appropriate recourse.”  Nonetheless, there is no evidence that the recommendation of the IDC was not considered.  However, it was only one factor, among many, that was considered by the separation authority.   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.

Issue 4.  In accordance with reference (B), the Board presumed regularity in the conduct of governmental affairs.  The assertions of the Applicant’s counsel, that there is “an important document in file which is completely unreadable” was not sufficient to overturn the presumption of regularity in the conduct of governmental affairs.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge and there is no evidence that the Applicant’s service record contained false information..  The Applicant’s misconduct is clearly documented.  Therefore, relief is 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.  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