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

ex-ASAR, USN 
Docket No. ND05-00009

Applicant’s Request

The application for discharge review was received on 20040930.  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 hearing before the board in the Washington National Capital Region.  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.  The Applicant listed civilian counsel as the representative on the DD Form 293.

Decision

A documentary 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, 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:

					“AFFIDAVIT

1.  I am over 18 years of age and competent to testify to the facts below.

2.  I served as an E2 Aviation Support Technician at Norfolk Naval Air Station.  After the results from the command sweep were released, I was asked by my direct work supervisor, AS1 D_, to remain with the unit.  AS2 L_ and AS2 J_ also requested that I remain in the service.  Lieutenant Commander H_, who was my command superior, also requested that I remain in the service.

3.  This is the first and only time that I had ever experimented with drugs.

4.  I have not used any drugs since this one-time use.

5.  I voluntarily agreed to this termination.  I am requesting that the Board upgrade my discharge to a general/under honorable conditions because I would like to have the opportunity to work for a Federal agency.

I do solemnly declare and affirm, under penalty of perjury, that the matters and facts set forth in the foregoing Affidavit are true and correct to the best of my knowledge, information and belief.

						[Applicant’s signature]
						H_ D. D_, Affiant (Applicant)”

Documentation

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

Applicant’s DD Form 214 (2 pages)
Enlisted Performance Evaluation (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020123 - 020822	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  020823		Date of Discharge:  040323

Length of Service (years, months, days):

	Active:    01  07  00  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rate:  ASAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  4

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:

030214:	Applicant commenced a period of unauthorized absence this date.

030218:	Applicant unauthorized absence terminated this date.

030313:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, violation of UCMJ, Article 92:  Failure to obey orders or regulations.
Award:  Forfeiture of $268.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

030313:	Retention Warning:  Advised of deficiency (OIC’s nonjudicial punishment on 030313 for VUCMJ Art. 86, unauthorized absence, Art. 92 orders violation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040203:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040127, tested positive for amphetamine and methamphetamine.

040217:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
	Award:  Forfeiture of $298.00 pay per month for 1 month, restriction and extra duty for 14 days, reduction to E-1 (restriction suspended 6 months).  No indication of appeal in the record.

040218:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse.

040218:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

040227:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040308:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040323 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 1-5:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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.  Based upon available record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Likewise, 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.  As such, relief is denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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