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

FOR OFFICIAL USE ONLY

 ex-CTT3, USN
Docket No. ND06-00937

Applicant’s Request

The application for discharge review was received on 20060706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510.   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 - Quality of service (submitted by the Applicant and the Applicant’s Representative)

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)
Joint Service Achievement Medal Certificates, dated March 19, 2003 (2 pages)
Unofficial Transcript from Community College Aurora

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19990616 - 19990713	ELS
		USNR (DEP)	20000110 - 20000606	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000607		Date of Discharge:  20040326

Length of Service (years, months, days):

	Active:    03  09  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  8 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (24-month extension)

Education Level:  12				AFQT:  75

Highest Rate:  CTT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2)			Behavior:  3.0 (2)		OTA:  3.50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Joint Service Achievement Medal, National Defense Service Medal, Good Conduct Medal

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: 

000110:	Applicant granted enlistment waiver for DEP discharge.

040116:	Applicant charged by Howard County Police, Howard County, Maryland, with possession of a controlled dangerous substance (CDS), possession of CDS paraphernalia, and possession of CDS packaged for distribution, all offenses occurring on 040112, Warrant No. 1T0041105.  Trial is pending on these charges. [Extracted from CO, NSGA ltr 040227.]

040202:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040123, tested positive for morphine.

040210:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - drug abuse.

040212:	NJP for violation of UCMJ, Article 112a: Wrongfully use morphine, a Schedule II controlled substance.
Violation of UCMJ, Article 86 (3 specs):
Specification 1: On or about 0800 hours, 040109, absent himself until on or about 1352 hours, 040109.
Specification 2: On or about 0800 hours, 040112, absent himself until on or about 1230 hours, 040113 (1 day).
Specification 3: On or about 0800, 040203, absent himself until on or about 1434, 040210 (7 days).
Violation of UCMJ, Article 107 (2 specs):
Specification 1: On or about 040109, with intent to deceive, make to CTT1(SW/AW) P_ B. D_, USN, a false official statement.
Specification 2: On or about 040109, with intent to deceive, make to CTT1 A_ M. T_, USN, a false official statement.
	Award:  Forfeiture of $900.00 per month for 2 months, restriction for 60 days, reduction to E-4.  Restriction suspended for 6 months.  No indication of appeal in the record.

040224:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040227:	Commanding Officer, Naval Security Group Activity, Norfolk, recommended discharge under other than honorable conditions by reason of misconduct - drug abuse.  Commanding Officer’s comments: “On 13 July 1999, S_ was administratively separated from the U.S. Navy for Moral Disqualification for a positive drug test for use of marijuana.  When again joining the Navy in June 2000, S_ admitted to underage drinking from 1995-1999 and use of marijuana from June 1995 through June 1999.  Despite his history of alcohol and drug abuse and his prior administrative separation, S_ was granted a waiver and allowed to come on active duty on 7 June 2000.  On 16 January 2004, S_ was charged in Howard County Maryland with possession of CDS, CDS paraphernalia, and possession of CDS packaged for distribute 12 January 2004, see section C above.  On Thursday 22 January 2004, S_ arrived at work exhibiting behavior indicative of being under the influence or incapacitated for work.  He was asked if he would involuntarily consent to give a urine sample, which subsequently tested positive for morphine, enclosure (3).  Later that day at Naval Medical Center (NMC), Portsmouth, after examination and evaluation, member was twice offered in-patient drug rehabilitation treatment.  Petty Officer S_ refused both offers to participate in treatment.  On Tuesday, 3 February 2004, S_ commenced an unauthorized absence.  While absent, he admitted himself to Greater Baltimore Medical Center, Baltimore, Maryland, for what he describes as “detox, “and returned to Naval Security Group Activity (NSGA), Norfolk, on 10 February.  At NJP on 12 February 2004, S_ admitted his guilt of all offenses described in Section (d) above, which included use of morphine, and received punishment for those offenses.  S_ is currently in Level III treatment for his drug use.”  

040303:	Commander, Navy Region, Mid-Atlantic, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040311:	Substance Abuse Rehabilitation Program (SARP) Naval Medical Center Portsmouth (NMCP), Norfolk, VA.  Discharge Summary.
	Date of Admission: 17 Feb 04
	Date of Discharge: 12 Mar 04
	Discharge Diagnoses: Axis I Opiate Dependent, Nicotine Dependent
	Axis II: Deferred
	Axis III: LBP
	Mode of Discharge:  Completed Formal Treatment Successfully.

040322:	Applicant is determined to be physically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040326 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).

Equity – Quality of service:  The Applicant and his Representative contend that his discharge should be upgraded because the majority of his service was exemplary, to include being promoted, attending off-duty college, and receiving two awards.  

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 nonjudicial punishment proceedings for violations of Articles 86, 107, and 112a of the UCMJ.  Violations of UCMJ Articles 107 and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court 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.

There is credible evidence in the record that the Applicant used illegal drugs.  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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

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 28 April 2005, 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, Articles 107 (false official statement) 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.

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