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

 
ex-AA, USN
Docket No. ND04-00982

Applicant’s Request

The application for discharge review was received on 20040604.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to submission of DD Form 293, the Applicant designated Disabled American Veterans as his representative.  In the acknowledgement letter the applicant was informed that he is approaching the 15 year point for review by this Board and encouraged to attend a personal hearing in the Washington D. C. area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107.  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.  “For employment purposes.”

2.  “This discharge was inequitable because it was based on one isolated incident in 2 ½ years of service with no other adverse action.

The discharge was for a cocaine laced cigarette that I didn’t know was laced until I puff it one time, at a party then the next day we had a random drug test, and I came up positive, that incident was an accident, I never used cocaine in my life.

Board did not offer any drug counseling, like they did for military personnel.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

3.  “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 her request for a discharge upgrade of his current   Other Than Honorable Conditions to that of General Under Honorable Conditions.

The FSM served on active service from October 19, 1987 to February 4, 1990 at which time he was discharged due to Misconduct – Drug Abuse (use). 

The FSM goes onto explain on the application that he submits for equitable relief by the Board as the drug use was a one time event (isolated), and that when reviewed in conjunction with the entire period of active duty a General discharge should have been allowed, especially in view of the lack of rehabilitation and counseling services.

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.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871006 - 871018	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  871019		Date of Discharge:  900204

Length of Service (years, months, days):

	Active:    02  03  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.46 (3)		Behavior:  3.13 (3)		OTA:  3.13

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  Not available in service record

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:

8811XX:	Counseling:  Advised of deficiency (Violations of Article 117, provoking speeches and gestures, Article 86 unauthorized absence (2 counts) and Article 92, disobeying a lawful order), notified of corrective actions and assistance available.  Assigned 10 hours EMI.

891016:	NAVDRUGLAB, OAKLAND CA, reported Applicant’s urine sample, received 891004, tested positive for [cocaine].

891116:	NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
	Award:  Forfeiture of $391 per month for 2 month(s) and reduction to E-2.  No indication of appeal in the record.

891116:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB Oakland CA 16164Z OCT 89 indicating positive results for cocaine.

891116:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

891129:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent and not amenable to treatment.  Physician’s comments: [Although pt does not feel he has ‘a drug problem’ his feelings are understandable since he reports having gotten caught after his only experience with cocaine (or any other drug), he refers to the incident, however, as a ‘stupid mistake’ … saying that he ‘just wasn’t thinking.’  He also expresses an interest/desire to remain in the Navy.]

891201:	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, and by a vote of 2-1 that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

891226:	Drug and Alcohol Abuse Report: Cocaine abuse detected by unit sweep urinalysis, CAAC and physician found Applicant not dependant, not amenable to treatment and an abuser.

900110:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

900127:	CNMPC 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 19900204 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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

Issue 2.  The Applicant states his discharge was based on one isolated incident in “2 ½ years.”  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.  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 counseling, do not refute the presumption of regularity in this case.  Relief denied.

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 proceedings for violating Article 112a of the UCMJ.  In addition, the Applicant was counseled for violating Articles 86, 92 and 117 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.

Issue 3.  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.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied. 

The following if provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago.  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.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023