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

  ex-SR, USN
Docket No. ND05-00964

Applicant’s Request

The application for discharge review was received on 20050517.  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.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing at the Washington Navy Yard, Washington D.C.  The Applicant did not respond to the letter and the Board proceeded with a document review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915.  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:

“So I can receive all of the benefits that is due to me for my service in Desert Storm.”

Documentation

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

Letter to Applicant from Board for Correction of Naval Records, dated April 25, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880921 - 890704	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890705		Date of Discharge:  911022

Length of Service (years, months, days):

	Active:    02  02  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with Bronze Star, NUC, SSDR, LoC

Days of Unauthorized Absence:  31

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:

890706:	Applicant briefed on Navy's policy of drug and alcohol abuse.

910716:	Applicant to unauthorized absence 0630, 910716.

910816:	Applicant from unauthorized absence 0630, 910816 (30 days/surrendered).

910828:	Applicant assigned extra military instruction for his deficiency (sleeping during working hours in a petty officer’s rack).

910830:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 910826, tested positive for cocaine.

910906:	NJP for violations of the UCMJ:
Article 86: Unauthorized absence.
Spec: In that SA S_ L_ M_ (Applicant), U.S. Navy, on active duty, assigned to USS VIRGINIA, located inport Norfolk, Va., did on or about 0001 16JUL91, without authority, absent himself from his unit; to wit: USS VIRGINIA, and did remain so absent until on or about 16AUG91.  A total of 31 days.
Article 112a:  Wrongful use of controlled substance.
Spec: In that SA S_ L_ M_ (Applicant), U.S. Navy, on active duty, assigned to USS VIRGINIA, located inport Norfolk, Va., on or about 23AUG91, wrongfully use cocaine, a schedule II controlled substance.
	Award:  Forfeiture of $370 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

910911:	Medical evaluation for drug abuse found no evidence of physical or psychological dependence on narcotics, cocaine, other elicit drugs or alcohol.  Evaluation indicates Applicant is not drug dependent.  [Extracted from Commanding Officer’s message dated 910930.]

910919:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by urine sample testing positive for cocaine and subsequent award of nonjudicial punishment.  The least favorable description of service authorized is a characterization of service as Other Than Honorable.

910919:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

910930:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

911008:	BUPERS 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 19911022 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  

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 violations of Articles 86 and 112a of the UCMJ.  The Applicant’s 31-day unauthorized absence is considered a commission of a serious offense.  The Applicant’s urine sample was reported as testing positive for cocaine on 19910830.  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 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.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence for more than 30 days.

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 502, Propriety.

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