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

FOR OFFICIAL USE ONLY

ex-ENFR, USN
Docket No. ND06-00907

Applicant’s Request

The application for discharge review was received on 20060628.  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: Applicant claims he was found not guilty of all charges at his General Court Martial hearing.

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19891205 - 19891227	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19891228		Date of Discharge:  19920603

Length of Service (years, months, days):

	Active:    02  05  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  100 days

Age at Entry:  29

Years Contracted:  4

Education Level:  12				AFQT:  73

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (3)			Behavior:  3.1 (3)		OTA:  3.07

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

900103:	Applicant briefed on Navy's policy of drug and alcohol abuse.

910814:	NJP for violation of UCMJ, Article 86 (2 specs):
	Specification 1: At or about 1300, 910723, absent himself from place of duty.
	Specification 2: At or about 2000, 910727, absent himself from unit until at or about 2200, 910727.
Violation of UCMJ, Article 92: On or about 910727, disobey a lawful order.
	Award:  Forfeiture of $150.00 per month for 1 month, restriction for 15 days.  No indication of appeal in the record.

910816:	Retention Warning:  Advised of deficiency (Violation of Article 86 and 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911013:	Applicant violated UCMJ, Article 112a (4 specs): 
Specification 1: Wrongfully possessed marijuana on 911013.
	Specification 2: Wrongfully used marijuana on 911013.
	Specification 3: Wrongfully used marijuana on or about Oct 91.
	Specification 4: Wrongfully distributed marijuana on or about Oct 91.

911120:	Applicant to Pre-trial confinement.

920228:	Applicant from Pre-trial confinement. (100 total days of confinement)

920228:	General Court-Martial.
	Charge:  violation of the UCMJ, Article 112a (4 specs):
	Specification 1: Wrongfully possessed marijuana on 911013.
	Specification 2: Wrongfully used marijuana on 911013.
	Specification 3: Wrongfully used marijuana on or about Oct 91.
	Specification 4: Wrongfully distributed marijuana on or about Oct 91.
	Sentence: Confinement for 100 days, reduction to E-1.
	CA action 920331:  Findings and sentence approved.

920228:	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 commission of a serious offense and misconduct due to drug abuse.

920228:	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.

920302:	Dependency Evaluation:  Applicant found to be an alcohol and drug abuser without dependency.  No treatment required.

920424:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920513:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy, Applicant’s discharge other than honorable by reason of misconduct due to drug abuse.

920513:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge other than honorable by reason of misconduct due to drug abuse.

920522:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct by reason of drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920603 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 found not guilty of all charges at his General Court Martial hearing and his discharge should be upgraded to honorable.  For the edification of the Applicant the Naval discharge Review board (NDRB) cannot review discharges by sentence of a General Court-Martial. Contrary to the Applicants claim, the court memorandum record shows the Applicant was found guilty of violation of UCMJ Article 112a (Wrongful use, possession, etc. of a controlled substance).  The Applicant was consequently awarded reduction in rate to E-1 and confinement for 100 days.  Once the General Court Martial findings were approved, the Applicant was administratively separated with a discharge under other than honorable conditions due to misconduct (Drug Abuse).  The discharge was approved by the Assistant Secretary of the Navy (Manpower and Reserve Affairs) and directed by the Bureau of Personnel (BUPERS).  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.

For the edification of the Applicant, 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 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.  Relief denied.

The following is provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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, Articles 92 (Disobeying a lawful order) and 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.

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