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

FOR OFFICIAL USE ONLY

ex-HN, USNR
Docket No. ND06-00835

Applicant’s Request

The application for discharge review was received on 20060608.  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 20070315.  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 Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	Equity: Isolated incident.

Documentation

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

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19910214 - 19910218	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19910219		Date of Discharge:  19950217

Length of Service (years, months, days):

	Active:    03  11  29
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  33

Years Contracted:  8

Education Level:  12 				AFQT:  88

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (6)	Behavior:  3.6 (6)		OTA:  3.80

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

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: 

910219:	Commenced active duty for a period of 48 months.

910220:	Applicant briefed on Navy's policy of drug and alcohol abuse.

910325:	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 civil involvement: Possession of cocaine, Nov 87.  Adjudicated charge dismissed.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

910612:	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 civil information you provided the Recruit Quality Assurance Interviewer and if found not factual, this waiver is void and you could be subject to other judicial or administrative proceedings.  Possession of cocaine, adjudicated charge dismissed.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

921117:	Retention Warning:  Advised of deficiency (Conduct unbecoming of a Hospital Corpsman and inappropriate conversation with a female patient in the Emergency Department, i.e. sexual overtones.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930604:	Applicant warrant was cleared with adjudication by the Ninth Judicial Circuit Court, Orange County, Florida and Applicant was sentenced to time served and court costs of $255.00.  [Extracted from Commanding Officer’s letter dated 950105 and letter from Office of Public Defender dated 930607.]

940113:	Applicant’s voluntary statement of explanation.

940201:	Commanding Officer requested a waiver for fraudulent enlistment for Applicant.

940906:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 940826, tested positive for THC.

941013:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance (marijuana).
	Award:  Forfeiture of ½ month pay for 2 months, extra duty for 45 days, reduction to E-3.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

941017:	Applicant interviewed and health record reviewed and no evidence of alcohol or THC dependence.  Agree with referral to prevent.

941024:	Retention Warning:  Advised of deficiency (Wrongful use of a controlled substance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941031:	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.

941031:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

941118:	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.

941121:	Applicant assessed by Substance Abuse Counselor and a medical officer and diagnosed as poly-dependent upon ETOH and methamphetamine.

941121:	Applicant signed VA statement of understanding.

950105:	Commanding Officer concurred with the findings and recommendation of the administrative discharge board.

950207:	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 19950217 by reason of misconduct due to drug abuse (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Equity – Isolated incident: The Applicant requests an upgrade contending that “other than this incident my record and achievements were exemplary.”  Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  On 19910612, the Applicant received a retention warning and waiver for fraudulent entry due his failure to disclose pre-service civil involvement concerning possession of cocaine, adjudicated charge dismissed.  Then on 19921117, the Applicant received another retention warning for inappropriate conversation (sexual overtones) with a female patient.  Finally, he was awarded nonjudicial punishment (NJP) for violation of UCMJ Article 112a, wrongful use of a controlled substance (marijuana).    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 was properly notified, processed and discharged.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy.  Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued.  Relief denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time.  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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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