, ex-BUCR, USN
ND06-00932

Current Discharge and Applicant’s Request:

Application Received:  				20060703
Narrative Reason for Separation:			MISCONDUCT () (USE)
Character of Service:				
Discharge Authority:				MILPERSMAN 3630620
Last Duty Assignment/Command at Discharge:	NAVAL MOBILE CONSTRUCTION BATTALION THREE

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070517
The Discharge shall remain:			
						MISCONDUCT () (USE)

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

:  .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19900615 - 19901217	COG
Active:   NONE		               		     
Period of Service Under Review:
Date of Enlistment:  				19901218
Years Contracted:  				;        
Date of Discharge:				19920422
Length of Service:				01  Yrs  04  Mos  05  Days
Time Lost During This Period:			      
						        
Education Level:  				
Age at this Enlistment:  				
AFQT:  						31
Highest Rate/Rank:				BUCA

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			3.1 (2)	3.2 (2)	3.2

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19900615: 	Applicant certified understanding of Navy Drug and Alcohol Abuse Statement.

19920327:	NJP for violation(s) of UCMJ:
	Article 112a: Wrongful use of marijuana on or about 19920227.
	Award:  Forfeiture of $392 for 2 months, restriction and extra duty for 45 days, reduction to E-1.
	No indication of appeal in the record.

19930330	Drug and Alcohol Abuse Report:  Marijuana abuse, ashore off duty.  Unit sweep urinalysis.  Physician found (Applicant) not dependent.  Comments:  Service member is considered to have no potential for future naval service in accordance with OPNAVINST 5350.4B guidelines for drug abusers.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

19920331:	NMCB THREE FPO San Francisco, CA
	Controlled substance evaluation.
	Evaluation conducted this date to determine the condition of subject member (Applicant) as a result of use/possession of controlled substances.
	Means of identification:  UA (positive) THC.
	Pertinent Clinical Findings:  Random UA THC (positive).  Used 2 times in recent months.  None before + none after positive UA.
	Opinion:  This member has abused drugs.  Is not drug dependent.  Does not require detoxification.  Does not require hospitalization.  Does not require rehabilitation.  Does not require psychiatric care/evaluation.
	Recommendations:  Command Level counseling.

Elements of Discharge:  

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE
Date Notified:					19920327
Narrative Reason(s):				MISCONDUCT DUE TO 
						MISCONDUCT DUE TO 
						
Least Favorable Characterization:			
Record Supports Narrative Reason:			YES

Date Applicant Responded to Notification:		19910330
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			
GCMCA Review				

Board Date:					NOT APPLICABLE
Finding of Administrative Board:			NOT APPLICABLE
					
Recommendation of Commanding Officer (date):	  (19920331)
Separation Authority (date):			BUPERS (19920413)
Narrative reason directed:				MISCONDUCT () (USE)
Characterization of directed:			 
Date Applicant Discharged:			19920422 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					1
	Health/Medical:					0
	Character Statements:				2
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		3

        Total Number of Pages:				7

       Description of Other Documentation:
            Representative statements

Discussion

Propriety and Equity
There is a presumption of regularity in the conduct of Government affairs.  This presumption will be applied in any review unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Applicant’s Issues as summarized by the Board:
1.  Drug use was isolated incident.
2.  Post-service conduct.
3.  Desire veteran’s benefits.

Acceptance of Applicant’s Issues:
The Board accepted Issue(s) 1-2 for consideration.  

Issue 1 (Equity).  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.  There is credible evidence in the record that the Applicant used illegal drugs, a violation of the UCMJ, Article 112a.  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.   The Board advises the Applicant that 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.  Relief denied.

Issue 2 (Equity).  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant provided three reference letters as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.
  
Regarding the Applicant’s Issue 3, the Board determined that  which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Pertinent Regulation/Law

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 II, Para 211, Regularity of Government Affairs,  Part V, Para 502, Propriety  and  Para 503, Equity.

C.  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.

 

Board Membership:  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