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

FOR OFFICIAL USE ONLY

 ex-YN3, USN
Docket No. ND06-00916

Applicant’s Request

The application for discharge review was received on 20060629.  The Applicant requested that his characterization of service, received at the time of discharge be changed to general (under honorable conditions).  The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Based on the Applicant’s failure to appear before the board, his lack of a previous document review and his expired eligibility for future reviews his case was converted to a document review.

Decision

A document review was conducted in Washington, D.C. Metropolitan area on 20070829.  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 Applicant’s service and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application [and/or] attached document/letter: 

“I wish to serve in the Army.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19851022 - 19851027	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19851028		Date of Discharge:  19910816

Length of Service (years, months, days):

	Active:    05 09 19
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  19 days
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4 (30-month extension)

Education Level:  13				AFQT:  80

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (6)		Behavior:  2.9 (6)		OTA:  3.43

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  First Good Conduct Award for period ending 901216; Sharpshooter Award; Overseas Service Ribbon (6th Award)

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: 

851029:	Applicant briefed on Navy's policy of drug and alcohol abuse.

861218:	NJP for violation of UCMJ, Article 112a (2 specs): Wrongful use and possession of marijuana on 860913.
	Award:  Forfeiture of $357.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  

861218:	Retention Warning:  Advised of deficiency (Disciplinary infractions and pattern of misconduct.  The facts or incident precipitating this counseling: CO’s NJP on 861218 for your violation of UCMJ 112a.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870201:	Substance Abuse Report: Possession of marijuana, 1-3 times per week September 1986, ashore off duty, detected by law enforcement 860913.  CAAC found Applicant not dependent and recommends Level I treatment.  Commanding Officer recommended retention.  
	
910515:	Applicant apprehended by Japanese National Police, Yokohama, Japan for violation of Japanese cannabis control law (on 910131 YN3 S_ bought approximately 5 grams of hashish) and detained at Detention House of Kanagawa Prefectural Police Headquarters.

910516:	Applicant to unauthorized absence at 0800 on 910516.

910604:	Applicant from unauthorized absence at 1406 on 910604 (18 days/surrendered).

910628:	Civil Conviction at Yokohama District Court.
	Sentence:  Imprisonment at forced labor for 6 months, suspended for 2 years.

910708:	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 a civilian conviction and misconduct due to drug abuse as evidenced by your Japanese civilian conviction on 910628 for possession of marijuana.

910716:	Following consultation with counsel and being properly advised or his rights, Applicant elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and acknowledged that he did not object to his administrative discharge processing.

910722:	Medical Assessment by F. D. P_, LT, MC, USNR, USNH Yokosuka, Japan, Informal Medicine.  Patient does not meet the criteria established by DSM III R to be considered an abuser or dependent on marijuana.  Patient reported having smoked a joint since being in the Navy.  He exercised poor judgment and should be held responsible for his actions.

910725:	Commanding Officer, U.S. Naval Ship Repair Facility, Yokosuka, recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to drug abuse.  Commanding Officer’s comments:  “Enclosures (1) through (7) are provided for further information.  YN3 S_(Applicant) is unsuitable for further military service because he committed misconduct due to a civilian conviction and repeated misconduct due to drug abuse.  He pled guilty in a Japanese court to receiving by transfer approximately three grams of cannabis plant at a price of approximately 10,000 Yen.  YN3 S_ does not object to his separation (enclosure (2)).  The evidence in this case is presented as enclosures (4) and (5).  Enclosure (6) is the medical officer screening of YN3 S_ which indicates no history of drug nor alcohol dependency.  Enclosure (7) indicates that YN3 S_ was aware of the Navy’s policy on drug abuse and the possible consequences of continued misconduct.  Due to YN3 S_’s previous record of NJP for two specifications of possession of marijuana and his conviction in a Japanese court of receiving marijuana, I strongly recommend that he immediately be discharged from the Navy with an other than honorable discharge.”

910731:	Drug and Alcohol Abuse Report:  Marijuana possession, detected by civilian police on 910131.  DAPA and physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Previous Disciplinary History:  861218: C .O’s. NJP for wrongful use and possession of marijuana on 860913.  8808XX: A police officer in Colorado pulled behind YN3 Y_(Applicant)’s car and found alcohol in the car, resulting in $81.00 fine.  Comments: YN3 S_’s military and professional performance has been above others of the same rate.  He accepts authority well, obeys military conduct and dress codes and has no known family or personal problems.
	On 910515, YN3 S_ was apprehended by Japanese police for violation of the Japanese cannabis control law.  Subsequently, he was in UA status from his command during the period 910516-910604.
	YN3 S_ had his last urinalysis testing on 900928, which was prior to his apprehension by civil authorities.  He tested negative.
	
910812:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

910813:	Applicant found medically qualified for separation.

910816:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910816 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).

For the information of the Applicant, despite a servicemember’s prior record of service, certain serious offense warrant separation from the naval service in order to maintain proper order and discipline.  The record documents the Applicant’s in-service use of illegal drugs which forms the basis for the discharge.  Violations of UCMJ Article 112a (wrongful use/possession of a controlled substance) carries a maximum penalty of a Dishonorable Discharge and up to 5 years of imprisonment if adjudicated by a court martial.  Following legal consultation the Applicant waived his right to an administrative discharge board.  Subsequently proper authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN 1910-146.  

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  An “other than honorable conditions” characterization of service 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.   In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.  

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  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