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

FOR OFFICIAL USE ONLY

 ex-HR, USN
Docket No. ND05-01291

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“This discharge was based on one individual incident. I’ve never tested positive, prior to or during the time, I was active duty. An individual who attended a bachelor party in fact planted the elements that were found during testing within a drink.  The individuals name is B_ B_.  Mr. B_, who found out at a later date that I had tested positive for a control substance, came forward with information that He laced several drinks at the party with cocaine powder.  At which time my defense team requested the matter be heard before a court martial.  Mr. B_ agreed and tested at this court martial.
The court martial was not ordered by the Government but requested by my defense team and me so the truth could be heard from Mr. B_ concerning this issue.
This discharge of Other Than Honorable has prevented me obtaining employment and hinders my future of ever gaining employment if this issue is not upgraded.”

Documentation

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

Applicant’s DD Form 214 (2)
Certification of military service, dtd January 23, 2003 (2)
Letter from Applicant, dtd September 27, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19911206 - 19920727	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920728		Date of Discharge:  19941216

Length of Service (years, months, days):

	Active:    02  04  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  59

Highest Rate:  HA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (2)			Behavior:  3.4 (2)		OTA:  3.40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

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

Chronological Listing of Significant Service Events: 

911206:	Applicant granted for a pre-service waiver for charge of discharging a firearm. 

920730:	Counseling: You (Applicant) are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose preservice civil involvement/drug abuse.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., discharging firearm in city limits, Sumter, SC, 12/91.  Paid $200.00.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

920928:	Counseling: You (Applicant) are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice involvement with civil authorities and/or illegal drugs consisting of the following:  - criminal sexual conduct in Mar 90 in Sumter, SC; no charges filed.  This waiver is being granted by the Commanding Officer, RTC San Diego, CA.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.  This waiver is being granted based upon known discrepancies in your service application.  If additional discrepancies are discovered, this waiver may be considered void and could be processed for administrative separation under other than honorable conditions as well as disciplinary actions being taken.

930622:	NAVDRUGLAB, Norfolk, VA reported Applicant’s urine sample, received 930611, tested positive for cocaine.

940125:	Special Court Martial:
	Charge: violation of the UCMJ, Article 112a:
	Specification: Did, in the Sumter , South Carolina area, on or about 5 June 1993, wrongfully use cocaine.  Plea:  Not guilty.  Finding:  Guilty.
	Sentence: Hard labor without confinement for 1 month, reduction to E-1.
	CA 920324: Sentence approved and ordered executed.

940329:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.  

940329:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

940607:	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 such misconduct warranted separation, and recommended discharge under other than honorable conditions.

940621:	Counsel for the respondent letter of deficiencies.

940808:	Commanding Officer, National Naval Medical Center, Bethesda, MD recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (cocaine), as evidenced by a positive random urinalysis, which was disciplined by a special court-martial.  Commanding Officer’s comments:  “I concur with the findings and recommendations of the Board.  HA G_(Applicant)’s actions demonstrates an unwillingness or inability to conform to the rules and regulations of the U.S. Navy’s policy of “zero tolerance” concerning drug use.  It was determined at HA G_(Applicant)’s special court-martial that misconduct due to drug abuse was committed.  Therefore, I recommend that HA G_(Applicant) be separated from the naval service.”

940927:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

941012:	Applicant found qualified for separation.

941128:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

941201:	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 19941216 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).  

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 Applicant states his discharge was based on one isolated incident. 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.  The Applicant’s service record is marred by conviction at special court martial for illegal drug use, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  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.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 special court martial proceedings for violation of Article  112a of the UCMJ.  Additionally, the Applicant received a retention warning for defective enlistment due to failure to disclose pre-service involvement with civil authorities. 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 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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.  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 112a, wrongful use of controlled substance.

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