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

  ex-SKSN, USN
Docket No. ND04-01014

Applicant’s Request

The application for discharge review was received on 20040610.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a personal appearance  review before a traveling panel closest to Nashville, TN.  The Applicant listed a private representative on DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area.  Subsequent to the application, the Applicant converted to a documentary review.

Decision

A documentary review was conducted in Washington, D.C. on 20050316.  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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “NATURE OF SEPARATION TO HARSH FOR OFFENSE COMMITTED”

The Applicant’s representative did not provide any issues.

Documentation

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

Applicant’s DD Form 214  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	800826 - 800909	COG
	Active:   USN			800910 - 840627	HON
	Active:   USN			840628 - 881124	HON

Period of Service Under Review:

Date of Enlistment:  881125		Date of Discharge:  901130

Length of Service (years, months, days):

	Active:    02  00  05 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  30		 	Years Contracted:  2 

Education Level:  12  		AFQT:  45

Highest Rate:  SK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)		Behavior:  3.45 (4)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NEM

Days of Unauthorized Absence:  65

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

881125:	Reenlistment into the Navy.

891209:	Emergency care and treatment at NAVHOSP San Diego, CA for alcohol dependence, reactive depression, marital problems (separated from wife 3 weeks).  30 year old active duty man with established diagnosis of alcoholism was separated from his wife 3 weeks ago, is facing bankruptcy, had his second or third DUI last night and called his wife with lethal plan for suicide is high risk suicide potential.
	Therapy:  Closed ward psychiatric observation for suicide precautions; medically stable.
	Impression:  Axis I (Alcohol dependence, reactive depression, marital problem).

891210:	Admitted to Mesa Vista Hospital.  

891214:	Discharge diagnosis:  AXIS I (Adjustment disorder with depressed mood mixed substance dependence), 
AXIS II (None), 
AXIS III (None), 
AXIS IV (Psychosocial stressors:  Moderate to Severe),
AXIS V (Current GAF:  Fair to Good at 75),
Highest GAF past year: Poor at 30,
Discharge GAF: Fair at 55 to 60).
Prognosis:  Good depending on completion of drug and alcohol treatment program as well as continuing to process difficulties with his wife, legal concerns, and money with a more realistic approach, i.e., able to check cognitive distortions related to depressions and anxiety and further help and treatment.

891230:	Unauthorized absence on or about 0715, 891230, intentions unknown.

900129:	Applicant declared a deserter on this date.

900305:	Applicant surrendered to parent command of EODMU THREE on or about 0025, 900305.

900327:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification:  In that SNM did on or about 0715, 891230, without authority, absent himself from his unit, to wit:  EODMU THREE, NAB Coronado, CA and did remain so absent until on or about 0025, 900305.
	Findings:  Guilty.
	Sentence:  Forfeiture of $250.00 per month for 4 months, restriction to NAB for 30 days and reduction to E-4.

900910:	CAAC evaluation indicated poor potential for further service and recommend administrative separation.  [Extracted from EODMU THREE MSG of 20NOV90].

9010XX:	Appeared in San Diego, County Court for 2 DUI charges which occurred AUG 89 and 9 DEC 89.  Found guilty.  Received fine of $4000 and 30 hours of community service. 

901116:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 901106, tested positive for cocaine.

901119:	Drug and Alcohol Abuse Report:  Cocaine abuse was not determined.  Urinalysis was done by random.  This incident happened on 901106 ashore-off duty.  Medical Officer’s evaluation found Applicant not dependent, not eligible for rehabilitation and recommended for separation from service not via VA Hospital.
	Commander’s action:  Process Applicant for separation, separation from naval service not via VA Hospital.

901119:	Medical evaluation for drug dependency:  32 year old found positive for cocaine on random urine test approximately 2 weeks ago.  This is his second positive urine test for cocaine and he has had 3 alcohol related instances.  SNM states that he purposely and knowingly took the cocaine with the goal of getting out of the navy.  He denies that he will continue drug use outside the navy and he is hoping to be discharged as soon as possible.  He also denies that he will abuse alcohol outside the navy.  His last alcohol ingestion was 3 days ago – 2 beers.  He denies suicidal or homicidal ideation or plans.  His plan is to pursue work with relatives in Georgia.
	Applicant was not dependent, however there is evidence of abuse.
	Recommendation:  If SNM is retrained then would recommend Level 2 Treatment.  Any assistance needed was offered.

901119:	NJP for violation of UCMJ, Article 112a:  Wrongfully use of a controlled substance, to wit:  cocaine.
Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

901119:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis (cocaine) on 901106.

901119:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

901120:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  No longer considered to have potential for continued naval service due to drug abuse.

901126:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

901127:	Applicant declined VA treatment for substance dependency.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901130 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:  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) for violation of UCMJ Article 112a (Wrongful use of a controlled substance), and a special court-martial for violation of Article 86 (Unauthorized absence totaling 65 days).  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 Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  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 5420.174D 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