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

 ex-PRAA, USN
Docket No. ND04-00542

Applicant’s Request

The application for discharge review was received on 20040211.  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.  The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041007.  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.  “I was effectively denied rights and protections due to me under the UCMJ.

2.   Due to the circumstances and conditions of my treatment naval air station Norfolk and due to the circumstances of my termination at that facility.  I contend that I was effectivly denied rights and protections due to me under the U.C.M.J.  More specifically since my discharge was made contingent upon completion of this program, I should have been allowed counsil.  I should have been afforded the right to confront my accusers; and I should have been granted some form judicial procedure.  I was granted none of these.”

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

3.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider 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:

Letter to United States Senator from Applicant, dated January 28, 2004
Response from United States Senator to Applicant, dated September 10, 2003
DD 214 (Member 1)
Letter to Senator C_ from C_ P_, State Veterans Counselor, dated June 10, 2002
Clinical Notes, dated January 14, 2000
Associate Degree in Occupational Studies from Briarcliffe College, dated December  2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	951229 - 960317	COG
	Active:   USN			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

*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:

980826:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 980807, tested positive for Cocaine.

981013:	NJP for violation of UCMJ, Article 86 (2 Specs):  Absence without leave (6 days total) violation of UCMJ, Article 112A:  Wrongful use of a controlled substance.
	Award:  Forfeiture of $519.19 per month for 2 months, restriction and extra duty for 60 days, reduction to E-2.  No indication of appeal in the record.
	Applicant voluntarily accepted NJP.

981014:	Medical evaluation for drug abuse found the Applicant to be dependent on drugs.  [Extracted from Commanding Officer’s Comments within the Commanding Officer’s letter, dated 981111].

981028:	Civil Conviction:  Virginia Beach General District Court for violation of misdemeanor count on disturbing the peace.
Sentence:  9 days and assessed court costs.  [Extracted from Commander’s Officer’s letter dated 981111].

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

981102:	Applicant advised of 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 drug abuse rehabilitation failure. Commanding Officer’s comments:  In late spring 1998, PR3 S_ (Applicant) began a marked decline in his performance.  In July he was arrested for assault and battery and released on bond.  Later the same day he was arrested at the same location for breaking and entering.  This time bail was 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_ (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 321,272 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_, M_ C_, dismissed him from treatment on 23 Oct 38.  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.

981130:	COMMANDER, NAVAL BASE, NORFOLK authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031229:	NDRB documentary record review Docket Number ND03-00418 conducted.  Determination:  discharge proper and equitable; relief not warranted.

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).

Issues 1-2:  The Applicant stated that he was effectively denied rights and protections due to him under the UCMJ.  In addition the Applicant stated that he was not allowed to have counsel.  On 19981102 the Applicant was advised of his rights and elected not to consult with counsel certified under the UCMJ Article 27B.  The Board found nothing to support the Applicant’s claims that he was denied any due process afforded him under the UCMJ and naval regulations.  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.

Issue 3:  The following is provided for the edification of the Applicant.  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.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   Therefore, relief is not appropriate.

The NDRB has no authority to provided additional review of this case. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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