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

FOR OFFICIAL USE ONLY

  ex-SA, USN
Docket No. ND06-00634

Applicant’s Request

The application for discharge review was received on 20060320.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070613.  After a thorough review of the testimony, 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 by reason of misconduct due to drug abuse.

.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

1.  Equity:  (Quality of service) Discharge not warranted in light of overall service record.
2.  Equity:  (Post service) Upgrade warranted in light of post-service conduct

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Statement from the Applicant, undated
Character Reference ltr from A_ G. W_, dated January 18, 2006
Character Reference ltr from Deacon J_ M_, dated January 19, 2006
Employment Reference ltr from B_ B_, Project Superintendent, dated February 16, 2006
Character Reference ltr from D_ S_, Applicant’s mother, dated January 24, 2006
Character Reference ltr from L_ A_ C_, Esquire, Applicant’s sister, Amtrak, Senior Dispute Resolution Officer, undated
Character Reference ltr from R_ B_, dated January 23, 2006
Character Reference ltr from T_ M_, Manager, The Florida House, dated January 31, 2006
Applicant’s DD Form 214
Character Reference ltr from H_ R C_, Service Officer, American Legion Post 1_, undated (per Applicant’s testimony, written on June 11, 2007)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19880914 - 19880925	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19880926		Date of Discharge:  19910711

Length of Service (years, months, days):

	Active:    02  09  16
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  12				AFQT:  28

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (4)			Behavior:  3.7 (4)		OTA:  3.65

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None*

*Although not listed on DD 214, Applicant’s service record indicates the following awards:  Battle “E” (2 awards), Navy Unit Citation, Meritorious Unit Citation, Humanitarian Service Medal, National Defense Service Medal, Letter of Appreciation.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

880913:	Applicant acknowledged understanding of Drug and Alcohol Abuse Statement.

880927:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890905:	Counseled for failing to meet body fat requirements due to dietary indiscretion.  Warned that failure to comply could result in administrative separation.

901205:	Incident/Complaint Report.  Applicant apprehended for driving unregistered vehicle and using false pass to bring vehicle aboard installation.

901220:	Applicant provided urine sample during unit sweep aboard USS HOLLAND (AS-32).

901228:	Applicant detached from USS HOLLAND.

910107:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 901226, tested positive for cocaine.

910108:	Commanding Officer, USS HOLLAND, forwarded NAVDRUGLAB message to Commanding Officer, USS JOHN F. KENNEDY (CV-76).

910201:	Applicant reported aboard USS JOHN F. KENNEDY for duty.

910219:	NJP for violation of UCMJ, Article 112a: Wrongfully use controlled substance.
	Award:  Restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

910221:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service as under other than honorable conditions.
 
910222:	Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty.  Random urinalysis 901210.   DAPA and physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments:  Determined at CO mast member has no further potential for naval service.

910409:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.  Applicant objected to separation.

910516:	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 and recommended discharge be suspended for 12 months.

910530:	Commanding Officer, USS JOHN F. KENNEDY, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer did not concur with the Administrative Board recommendation for suspended discharge, and recommended that the Applicant be separated.

910610:	Applicant’s counsel submitted letter to Commander, Navy Personnel Command, arguing for approval of suspended discharge, or, if not discharge not suspended, that the Applicant receive characterization of service as General (Under Honorable Conditions).

910627:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

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 19910711 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).  The Board presumed regularity in the conduct of governmental affairs (E).

Issue 1 (Equity):  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 a member’s conduct is a significant departure from that expected of a member of the naval service.  There is credible evidence in the record that the Applicant used cocaine, a violation of the UCMJ, Article 112a, and the Applicant acknowledged to the Board that he smoked cocaine more than once over a two week period.  The Board noted that this acknowledged use was more extensive than the only “one act of misconduct” to which his counsel referred, and to which Applicant admitted, during his administrative separation proceedings.  While his command determined that nonjudicial punishment for his misconduct was appropriate, the Board advises the Applicant that violation of Article 112a is considered a serious offense for which a punitive discharge is authorized at special or general court-martial.  When handled by administrative discharge procedures, separation for illegal drug use generally results in characterization of service as under other than honorable conditions.  In addition to this misconduct, the Applicant’s service was further marred by 2 counselings for being overweight and for using a false pass to bring an unregistered vehicle aboard a naval installation.  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 on this issue.

Issue 2 (Equity):  The Applicant’s discharge characterization accurately reflects his service to this country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the Applicant’s enlistment.  Additionally, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The Applicant provided testimony and written character reference statements indicating that, for approximately 4 years, he has been clean and sober; has maintained steady employment, has made progress in responsibly handling his financial affairs, and has been contributing to the welfare and assistance of others struggling with substance abuse.  However, while noting the Applicant’s commendatory actions in mastering his substance abuse problem, the Board determined that the Applicant’s relatively recent and positive post-service conduct, in light of his in-service cocaine use and eleven years of post-service substance abuse and related circumstances, were not sufficient to mitigate the misconduct which precipitated the discharge.  Relief not warranted.

The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, 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, Use, possession, etc., 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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