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

FOR OFFICIAL USE ONLY

ex-HA, USN
Docket No. ND06-00646

Applicant’s Request

The application for discharge review was received on 20060316.  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 20070125.  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 characterization 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:

Equity	– In service performance
	– One incident
	– Post service

Documentation

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

Applicant’s DD Form 214  (Member 4)
Ltr from Applicant, dtd January 1, 2006
Character Reference ltr from J_ C_, dtd January 1, 2006
Ltr from Department of the Army, R_ M. F_, SGM, USA, Operating and Training, 176th Medical Group, dtd January 16, 2006
Student online grades, dtd March 7, 2006  (2 pages)
Schedule of Classes for Applicant, dtd March 7, 2006

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
	Inactive:  USMCR (DEP)	Unknown – Unknown			COG
	Inactive:  USNR (DEP)	19970227 - 19970728	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970929		Date of Discharge:  20020718

Length of Service (years, months, days):

	Active:    04  09  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  75 days

Age at Entry:  24

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  68

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.75 (4) 	Behavior:  3.0 (4)		OTA:  3.46 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sharpshooter M-16 Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620

Chronological Listing of Significant Service Events: 

020525:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81:
	Specification: Did, on divers occasions, from on or about June 2000 through on or about June 2001 conspire with HM3 I_ G. L_, to import Equipoise, and in order to, effect such conspiracy, did drive to Mexico on divers occasions to import Equipoise.
	Plea:  Guilty				Findings:  Guilty
	Charge II:  violation of the UCMJ, Article 112a:
	Specification 1:  Did, on divers occasions, from on or about June 2000 through on or about June 2001, wrongfully use Equipoise, a schedule III controlled substance.
	Plea:  Guilty 				Findings:  Guilty *
	Specification 2:  Did, on divers occasions, from on or about June 2000 through on or about June 2001, wrongfully import Equipoise, a schedule III controlled substance.
	Plea:  Guilty				Findings:  Guilty **
	Specification 3:  Did, on divers occasions, from on or about June 2000 through on or about June 2001, wrongfully possess Equipoise, a schedule III controlled substance.
	Plea:  Guilty				Findings:  Guilty**
	Charge III, violation of UCMJ, Article 134:
	Specification 1:  Did, on divers occasions, from on or about June 2000 through on or about June 2001, wrongfully possess Viagra, a prescription drug, which under the circumstances was of a nature to bring discredit upon the armed forces.
	Plea:  Not Guilty			Findings:  Withdrew
	Specification 2:  Did, on divers occasions, from on or about June 2000 through on or about June 2001, wrongfully import Viagra, a prescription drug, which under the circumstances was of a nature to bring discredit upon the armed forces.
	Plea:  Withdrew			Findings:  Withdrew
	Specification 3:  Did, on divers occasions, from on or about June 2000 through on or about June 2001, wrongfully use Viagra, a prescription drug, which under the circumstances was of a nature to bring discredit upon the armed forces.
	Plea:  Withdrew			Findings:  Withdrew
	*Excepting the words “June2000” and June “2001” and substituting therefore the words “January 2001” and February 2001.”
	**Excepting the words “June2000” and June “2001” and substituting therefore the words “January 2001” and March 2001.”
	Finding: to Charge and the specification thereunder [as excepted], guilty.
	Sentence: Forfeiture of $826.00 a month for 3 months, reduced to E-2.  Confinement for 75 days.
	CA action 020408:  Sentence approved and ordered executed.  
	
020520:	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.

020520:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights. 

020603:	Commanding Officer, recommended discharge with an under other than honorable conditions characterization by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “I strongly recommend that he be separated from the Navy and that the characterization of his service be “Other Than Honorable”.

020624:	Commander, Navy Personnel Command, forwarded the discharge package to the Secretary of the Navy concurring in the recommendation to separate the Applicant under other than honorable conditions by reason of misconduct due to drug abuse.

0207?2:	Assistant Secretary of the Navy (Manpower and Reserve Affairs), approved BUPERS’ recommendation.

020708:	COMNAVPERSCOM, directed the Applicant's discharge with 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 20020718 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).

The Applicant states his service was marred by “one mistake.”  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. The Applicant’s service record is marred by award of special court martial for possession, use, and importation of illegal substances thus substantiating the misconduct for which he was separated.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions generally results in a characterization of service as under other than honorable conditions.  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.

The Applicant provided evidence of post service accomplishments in support of his request for upgrade.  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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct, which precipitated the discharge.  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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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, possess, and importation of an illegal 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