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

FOR OFFICIAL USE ONLY

 ex-ABH3, USN
Docket No. ND06-00952

Applicant’s Request

The application for discharge review was received on 20060711.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Convenience of the Government.”  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 20070510.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the reason and characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge and narrative 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 - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety:  The Applicant contends that he unknowingly ingested illegal drugs while performing sex with his wife.    

Equity: Quality of Service.

Documentation

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

Applicant’s DD Form 214
Letter to Board for Correction of Naval Records, dated June 23, 2006
DNA Parentage Test Report, dated December 9, 2004
Evaluation Record and Counseling Report for period March 16, 1999 to March 15, 2000
Evaluation Record and Counseling Report for period March 16, 1999 to September 15, 1999
Evaluation Record and Counseling Report for period March 16, 1998 to March 15, 1999 (2)
Evaluation Record and Counseling Report for period March 16, 1998 to September 15, 1998
Evaluation Record and Counseling Report for period March 16, 1997 to December 4, 1997
Evaluation Record and Counseling Report for period December 4, 1996 to March 15, 1997
Evaluation Record and Counseling Report for period June 16, 1996 to December 3, 1996
Evaluation Record and Counseling Report for period July 1, 1995 to June 16, 1996
Enlisted Performance Evaluation for period November 2, 1994 to December 2, 1994
Enlisted Performance Evaluation for period July 1, 1994 to November 1, 1994
Enlisted Performance Evaluation for period July 1, 1993 to August 27, 1993
Enlisted Performance Evaluation for period January 16, 1993 to June 30, 1993
Enlisted Performance Evaluation for period February 1, 1992 to January 15, 1993
Enlisted Performance Evaluation for period February 1, 1991 to January 31, 1992
Letter of Commendation, dated July 5, 1999
Citation for meritorious service form January 1, 1993 to January 31, 1996 (2)
Letter of Appreciation, dated December 13, 1995
Letter of Appreciation, dated August 18, 1995
Certificate of completion of Enlisted Aviation Warfare Specialist, dated June 29, 1999
Letter to Applicant from Commanding Officer, dated June 29, 1999
Letter to Applicant from CWO3 J. V. S_, undated
Outstanding performance letter to Applicant, undated
Character Reference ltr from W_ K. L_, undated
Letter of recommendation, dated April 28, 2000
Seven photographs

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19891117 - 19900822	COG
	Active:   USN	19900823 - 19971016	HON

Period of Service Under Review:

Date of Enlistment:  19971017		Date of Discharge:  20000503

Length of Service (years, months, days):

	Active:    02  06  17
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  25

Years Contracted:  3

Education Level:  12				AFQT:  39

Highest Rate:  ABH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (4)			Behavior:  3.3 (4)		OTA:  3.79

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 (2), Flag Letter of Commendation (2), Southwest Asia Service Ribbon, Joint Meritorious Unit Award (2), Meritorious Unit Commendation, Good Conduct Medal (2), Navy ‘E’ Ribbon (2), Enlisted Aviation Warfare Specialist, Navy Unit Commendation, Joint Meritorious Service Award

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly Article 3630620.

Chronological Listing of Significant Service Events: 

971017:	Reenlisted this date for a term of 3 years.

000316:	NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine 7-10 Jan 2000.
	Award:  Forfeiture of $778.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

000406:	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.

000406:	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.

000417:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct - drug abuse.

000428:	Commander, Mine Warfare Command, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000503 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).

The Applicant contends he unknowingly ingested illegal drugs while performing sex with his wife.  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 Applicant’s allegation, that he unknowingly ingested illegal drugs, is not substantiated and does not refute the presumption of regularity in this case.  Relief is denied.

The Applicant claims he served his country proudly for almost 10 years and requests a characterization upgrade based on quality of service.  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 period of service under review was marred by one nonjudicial punishment proceeding for violation of Article 112a (Wrongful use, possession, etc. of controlled substances) of the UCMJ.  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 Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his 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.

The Applicant claims his ability to serve was impaired because of martial problems.  The Applicant contends that his problems in the Navy can be attributed to marital issues.  While he may feel that his marital problems were the underlying cause of his misconduct, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief is 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), Change 27, effective 27 March 2000 - 11 Feb 2001, 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