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

FOR OFFICIAL USE ONLY

ex-QMSN, USN
Docket No. ND06-00553

Applicant’s Request

The application for discharge review was received on 20060314.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20061214.  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 General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Decisional Issues:

Equity:  one isolated offense

Propriety/Equity:  discharged despite board vote to retain

Documentation

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

3 Pages from Applicant’s Service Record
Applicant’s DD Form 214  (Copy 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010530 - 20010702	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010703		Date of Discharge:  20050413

Length of Service (years, months, days):

	Active:    03  09  11  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  66

Highest Rate:  QM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  3.0 (3)		OTA:  3.25 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Global War On Terrorism Service Medal, Navy and Marine Corps Good Conduct Medal, Armed Forces Expeditionary Medal, Navy “E” Ribbon, Sea Service Deployment Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

040910:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

041214:	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.

050120:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

050210:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and voted unanimously to retain Applicant.

050308:	Commanding Officer, Navy Region Southwest Transient Personnel Unit, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “I concur with the Board’s findings that QMSN R_ (Applicant) is guilty of misconduct due to drug abuse.  However, I disagree with the Board’s recommendation to retain QMSN R_.  Every Sailor is aware of the zero tolerance policy for the use of drugs.  QMSN R_ was found guilty at Commanding Officer’s NJP for wrongful use of a controlled substance (amphetamines).  In order to send a clear message to our Sailors, QMSN R_ should be separated from the Navy.  His use of amphetamines while on active duty is a significant departure form the conduct expected of members of the Naval Service and warrants an Other Than Honorable Discharge.”

050405:	Commander, Navy Personnel Command, recommended that the Applicant be separated with a General (Under Honorable Conditions) by reasons of misconduct due to drug abuse.  

050408:	Approved by Assistant Secretary of the Navy (M&RA)

050412:	COMNAVPERSCOM directed the discharge of the Applicant by reasons of misconduct due to drug abuse with a General (Under Honorable Conditions) characterization.  

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050413 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant states his discharge was based on “one isolated incident in 45 months of service with no other adverse actions.”  Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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.  There is credible evidence in the record that the Applicant used illegal drugs.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The Applicant argues that his discharge was improper because his administrative discharge board voted to retain him on active duty.  This Board disagrees with the Applicant’s conclusion.  While his administrative discharge board did vote for retention, that vote was not dispositive of the case.  The Commanding Officer recommended that he be separated rather than retained.  Where there is a disagreement between the board recommendation and that of the Convening Authority, section 1910-702 of the Naval Military Personnel Manual, (NAVPERS 15560C) requires forwarding of the administrative discharge package to NAVPERSCOM for possible final decision by SECNAV.  The Applicant’s discharge package was properly forwarded to SECNAV for approval.  The Board could discern no impropriety or inequity in the processing of the Applicant’s discharge and therefore consider his discharge proper and equitable.  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.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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 (use of a 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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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