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

  ex-YN3, USN
Docket No. ND05-00117  

Applicant’s Request

The application for discharge review was received on 20041029.  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 the application, the Applicant obtained representation by Disabled American Veterans. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  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. “My undesirable discharge was inequitable because it was based on one isolated incident in 67 months of service with no other adverse action.”

2.  “The undesirable discharge is improper because it totally disregards the Applicant’s medical condition, which was still an unresolved issue at the time of separation.”   

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

The FSM served on active service from September 8, 1998 to March 3, 2004 at which time he was discharged due to Misconduct. 

The FSM contends the current discharge is improper because it totally disregards the applicant’s medical condition, which was an un-resolved issue at the time of discharge. Additionally, there was by the Administrative Board, a total disregard for the previous sixty-seven (67) months of Honorable service. 

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

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 5420.174D. The assignment of a General, Under Honorable Conditions discharge will more appropriately reflect the character of service FSM Cooper provided to the Navy, and at the same time also reflect a moderate continued punishment for his single episode of misconduct.

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:

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980124 - 980907	COG
	Active:   USN			980908 - 021211	HON

Period of Service Under Review:

Date of Enlistment:  021212		Date of Discharge:  040303

Length of Service (years, months, days):

	Active:    01  02  22
	Inactive:  None

Age at Entry:  22			Years Contracted:  3

Education Level:  12			AFQT:  63

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(2), AFEM, NM, NUC, GCA

Days of Unauthorized Absence:  None

*No Marks made available for review

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:

021212:	Reenlisted on board USS ABRAHAM LINCOLN (CVN-72) for 3 years.
  
030825:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 030819, tested positive for [THC].

031107:	NJP for violation of UCMJ, Article 112a: Wrongfully use a controlled substance, to wit: marijuana.
	Award:  Forfeiture of $764.00 pay per month for 2 month(s), restriction and extra duty for 45 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

031112:	Medical evaluation found that the Applicant does not meet the criteria for cannabis dependency or abuse.  The Applicant meets 3 of 7 of the criteria of alcohol dependency, 303.9, in sustained full remission.

031112:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible as under other than honorable conditions by reason of misconduct due to drug abuse.

031112:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

040115:	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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

040219:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

040220:	Commander, Navy Region Midwest authorized 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 20040303 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, 3.  The Applicant states his discharge was based on one isolated incident in “67 months.”  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.  There is credible evidence in the record that the Applicant used illegal drugs.  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.  The Applicant states that his discharge is improper because “it totally disregards the Applicant’s medical condition.”  There is no indication in the record that the Applicant was denied medical care or was not properly treated.  The Applicant’s claim, that he had a medical issue at the time of separation that was “unresolved” does not refute the presumption of regularity in this case.  Further, DoD disability regulations do not preclude a disciplinary separation.  Such separations normally supersede disability separations or retirements.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The PEB case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  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.  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