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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND06-00906

Applicant’s Request

The application for discharge review was received on 20060623.  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 20070419.  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:  “favoritism and abuse of power” contributed to misconduct
  Post-service conduct mitigates misconduct

Documentation

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

Character Reference ltr from S_ L. G_ Sr, dated May 30, 2006
Character Reference ltr from T_ M. P_, dated June 5, 2006
Character Reference ltr from G_ G_, dated June 5, 2006
Ltr from Applicant, dated June 9, 2006
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010131 - 20010307	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010308		Date of Discharge:  20030311

Length of Service (years, months, days):

	Active:    02  00  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  Unknown

Education Level:  GED			AFQT:  63

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)			Behavior:  1.0 (1)		OTA:  2.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal/Meritorious Unit Commendation/Navy Unit Commendation/Armed Forces Expeditionary Medal/Overseas Service 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: 

011128:	Medical Evaluation, Mental Health Department, Branch Medical Clinic, Bahrain, CDR W. E. H_, Ph.D., MSC, USN, Clinical Psychologist:
	(Applicant) referred by his DAPA for alcohol use assessment…Diagnostic interview reveals that Pt meets DSM-IV criteria for alcohol abuse if not alcohol dependence…use is extreme and is significantly affecting his work and personal relationships…no evidence of Psychosis or Major Depression noted at this time and hi is totally responsible for his actions.
	Axis I:  Alcohol abuse.  R/O Alcohol dependence with physiological dependence.
	Axis II:  Deferred.
	Recommendation:  1. Fit for full duty.  
2.	Alcohol intervention services at level # 1 or 2 treatment facility.
3.	No further F/U needed in Mental Health.  

020202:	Applicant referred for competence for duty examination due to alcohol intoxication.  Disposition:  Returned to full duty.

020213:	Medical Evaluation, Mental Health Department, Branch Medical Clinic, Bahrain, CDR W. E. H_, Ph.D., MSC, USN, Clinical Psychologist:  (Applicant)… DAPA referred for alcohol use assessment…evaluated for alcohol use on 011128 and diagnosed with alcohol abuse and a R/O on alcohol dependence…recommended for either level # 1 or # 2 alcohol treatment…not sent for treatment and has now been involved in another alcohol misuse situation…now meets DSM-IV criteria for alcohol dependence with physiological dependence…sailor is clearly an alcoholic who will drink himself into a serious medical crisis or possibly involve himself in an international incident if allowed to remain untreated.  Currently, he is in need on treatment ASAP…no evidence of psychosis or major depression.
	Axis I:  Alcohol dependence with physiological dependence.
	Axis II:  Immature and dependent traits.
	Plan:  1. Fit for full duty at this time.  
2.	Recommend level # 2 alcohol treatment intervention ASAP.
3.	Order Pt not to consume any beverages containing alcohol.

020415:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
Violation of UCMJ, Article 87: Missing movement.
	Award:  Forfeiture of $660.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

021108:	Applicant admitted to Level III Residential Substance Abuse Rehabilitation Program, Naval Medical Center, Portsmouth, Norfolk, VA, with diagnosis of ETOH dependency.

021125:	Applicant discharged from Level III Residential Substance Abuse Rehabilitation Program, Naval Medical Center, Portsmouth, Norfolk, VA as unamenable for treatment.

030113:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030108, tested positive for THC.

030119:	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.

030119:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030120:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
	Award:  Forfeiture of $660.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

030202:	Commanding Officer, USS ARDENT (MCM 12), recommended discharge by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions.

030220:	Commander, Mine Warfare Command, directed the Applicant's discharge by reason of misconduct due to drug abuse with characterization of service as under other than honorable conditions.

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 20030311 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).

There is credible evidence in the record that the Applicant used illegal drugs, a violation of Article 112a of the UCMJ.  Violation of Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged at a special or general court-martial.
If not disposed of via court-martial, mandatory processing for administrative 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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Board found no evidence in the record to support the Applicant’s implied and uncorroborated assertion that his illegal drug use was the result of some unspecified “favoritism and abuse of  power” within his unit.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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), 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 112a, Wrongful use, possession, etc., of controlled substances.

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