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

FOR OFFICIAL USE ONLY

ex-SA, USNR
Docket No. ND06-00713

Applicant’s Request

The application for discharge review was received on 20060412.  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 20070223.  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 commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“The real reason I failed a urinalysis was due to the fact that I had taken my wife’s decongestant pills that had amphetamines in them.  I’m not denying the fact that I have had a drug addiction problem.  I am currently enrolled in Eagle Recovery in Auburn, CA and I am on the road to recovery.  I feel that being a veteran of the Persian Gulf war, I should be entitled to my VA benefits.  These will help me to better my life and keep me on the right track.  I need to buy a house (want) and would really like to get my GI Bill back that I paid into in full.  This would be important to my recovery also.  I could go back to school and get a proper education.”

Documentation

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

Proof of Residency from Eagle Recovery Programs & Transition Home, dtd March 16, 2006
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900720 – 19900725	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900726		Date of Discharge:  19920229

Length of Service (years, months, days):

	Active:    01  07  04  
	Inactive:  00  00  06

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  8 (24 months active)

Education Level:  12				AFQT:  53

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (1) 		Behavior:  2.8 (1)			OTA:  3.40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  First Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal with 2 Bronze Stars

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

900720:	Enlistment waiver approved for one misdemeanor.

900726:	Commenced active duty for a period of 24 months.

900727:	You 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 pre-service involvement with civil authorities consisting of the following: 900704 MIP Alcohol Auburn CA, pd $45.00, 1 yr license suspension.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

900727:	Applicant briefed on Navy's policy of drug and alcohol abuse.

911031:	NJP for violation of UCMJ, Article 111: Drunk driving 911023.
Award:  Forfeiture of $250.00 pay per month for 2 months (1 month suspended for 1 month), restriction and extra duty for 30 days.  No indication of appeal in the record.

911031:	Retention Warning:  Advised of deficiency (Article 111, UCMJ-Drunk driving on 911023.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920123:	NJP for violation of UCMJ, Article 112a: Wrongfully use methamphetamine on 911203.
Award:  Forfeiture of $376.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

920203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by the Article 111, UCMJ, Offense committed during current enlistment, and misconduct due to drug abuse as evidenced by the drug abuse offense during current enlistment [Extracted from CO’s message].

920204:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation [Extracted from CO’s message].

920207:	Medical officer’s evaluation indicates that member noted to have a positive urinalysis for methamphetamine.  The member denies any such use of illegal drugs or prior experimentation.  Member shows early signs of alcohol dependence.  Member is not amenable to treatment.  [Extracted from CO’s message.]

920215:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by the Article 111, UCMJ, Offense committed during current enlistment, and misconduct due to drug abuse as evidenced by the drug abuse offense during current enlistment.

920225:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920229 by reason of misconduct due to commission of a serious offense (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 requests upgrade of his discharge to honorable.  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 characterization of service 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.

The Applicant states that his positive urinalysis was the result of using his wife’s cold medicine containing amphetamines.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his use was not wrongful.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied. 

The Applicant states that he wants an upgrade to obtain veterans benefits.  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 of 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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 111 (drunk driving) and 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 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