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

  ex-ADAA, USN
Docket No. ND05-00369

Applicant’s Request

The application for discharge review was received on 20041227.  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 documentary record review.  The Applicant did not list a representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were 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)	911024 - 920316	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920317		Date of Discharge:  950112

Length of Service (years, months, days):

	Active:    02  10  06
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  10 (TSD*)		AFQT:  46

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)		Behavior:  3.07 (3)		OTA:  3.47

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM, AFEM

Days of Unauthorized Absence:  None

*Trade school diploma

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

941019:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 941013, tested positive for THC.

941021:	Drug and Alcohol Abuse Report:  Marijuana abuse.  Abuse denied.  Random urinalysis on 941013.  Physician found the Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: ADAN J_ (Applicant) did satisfactory work in the maintenance division.  His inability to comply with the Navy’s policy of “Zero Tolerance” on drug abuse makes him unsuitable for future naval service.  ADAN J_ (Applicant) has no potential and is recommended for separation.

941025:	Drug and Alcohol Program Screening:  Recommended Applicant be processed for discharge due to non-compliance with Navy’s drug policy.

941102:	Dependency Screening:  No evidence of dependency.  Applicant returned to command for administrative processing.  

941123:	NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongful use of a controlled substance on 941013, to wit: THC, (2) Wrongful possession of a controlled substance on 941013, to wit: marijuana.
	Award: Forfeiture of $511.50 per month for 1 month, restriction for 30 days, reduction to E-1.  Restriction suspended for 180 days.  No indication of appeal in the record.

941123:	Applicant’s voluntary statement verbatim: “While on a occasion, visiting 
with relatives at their home, an in-law relative of mine was in use of this 
controlled substance upon my arrival, which I am saying that there was no
use of it on my behalf, but I became present of it, which puts me in
contact with it.  This contact is the only thing that I feel I am greatly 
responsible for none other than.”

941201:	Applicant notified of consideration for an administrative discharge by reason of misconduct due to drug abuse as evidenced by respondent’s nonjudicial punishment for violation of UCMJ, Article 112A, wrongful use of a controlled substance and wrongful possession of a controlled substance, as reflected in the NAVDRUGLAB JACKSONVILLE, FL message to this command showing his positive identification in a random command urinalysis screening for THC, conducted on or about 941013.  If separation is approved, the characterization of service may be other than honorable.

941201:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.  Applicant did not object to separation.

941205:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.

950106:	BUPERS 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 19950112 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).

The Applicant introduced no decisional issues for consideration by the Board.

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 (2 Specifications – Wrongful use and possession of marijuana).  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 a characterization of service of 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 Board, 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 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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