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

FOR OFFICIAL USE ONLY

 ex-AA, USN
Docket No. ND06-00882

Applicant’s Request

The application for discharge review was received on 20060622.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) or entry level separation or uncharacterized.  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 20070405.  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

Applicant Issues

The Applicant claims he was never proven guilty or tested positive for drugs and should not have been discharged.

Documentation

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

Applicant’s DD Form 214 (Service 2)
Refusal of Substance Abuse Treatment Statement, dtd March 26, 2003
Letter from Senator C_ E. G_, dtd August 22, 2003 
Letter from Senator C_ E. G_, dtd September 4, 2003 
Letter from Senator C_ E. G_, dtd October 20, 2003 
Letter from T. E. D_ to Senator G_, dtd October 14, 2003 (2 pgs)
Applicant’s Request for Reelection of Administrative Separation Processing Notice-Administrative Board Procedures, dtd June 11, 2003
Convening Authority Letter, dtd May 30, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000829 - 20000907	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000908		Date of Discharge:  20030612

Length of Service (years, months, days):

	Active:    02  09  05  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  70

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.6 (3) 		Behavior:  2.3 (3)			OTA:  2.21

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Navy “E” Ribbon, National Defense Service Medal, Navy Unit Commendation

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: 

030307:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
Violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award:  Forfeiture of $670.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

030326:	Applicant refused Substance Abuse Treatment.

030509:	Applicant notified of intended recommendation for discharge by reason of misconduct drug abuse.

030510:	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.

030517:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct drug abuse.  Commanding Officer’s comments:  “Airman C_ attended both BEARING and PREVENT.  Airman C_ was implicated for drug use by other squadron members (Airman T_ and Airman K_) who swear they say him use drugs.  Airman C_ admitted attending the same apartment frequented by drug users, but stated he only consumed alcohol, and never saw other consume drugs.  Airman C_ did not admit to drug use nor did he ever test positive. However, at CO’s Mast 030307, he was found guilty of drug abuse.  After carefully reviewing enclosures (1) through (5), I recommend AA C_ be separated from the naval service by reason of Misconduct-Drug Abuse.  AA C_ is recommended to receive a discharge under Other Than Honorable conditions.”

030530:	GCMCA, Commander, Cruiser-Destroyer Group FIVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030531:	Administrative entry (NAVPERS 1070/613):  The Applicant signed and acknowledged, “Effective today, I have been advised that substance abuse aftercare treatment cannot be offered to me in conjunction with administrative separation (Drug Abuse), due to not disclosing my use of drugs, and subsequent refusal to be screened by a Licensed Clinical Psychologist or Medical doctor.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030612 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 Applicant claims he was never proven guilty or tested positive for drugs and should not have been discharged.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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 significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by one nonjudicial punishment proceeding for violation of Articles 92 (Failure to obey a lawful order) and 112a (Wrongful use of a controlled substance) of the UCMJ.  A failure to obey a lawful order and wrongful use of a controlled substance are considered serious offenses for which a punitive discharge is authorized at courts martial. 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.

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 Present, 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 92 (Failure to obey a lawful order) and 112a (Wrongful 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.

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