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

FOR OFFICIAL USE ONLY

 ex-AMEAN, USN
Docket No. ND06-00956

Applicant’s Request

The application for discharge review was received on 20060713.  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 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.

iate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

No decisional issues.

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 4)
Letter from B_ F_, Applicant’s wife, undated
Letter from B_ F_, Applicant’s mother, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020903 - 20021022	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021023		Date of Discharge:  20050523

Length of Service (years, months, days):

	Active:    02  07  01
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  11				AFQT:  50

Highest Rate:  AMEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Global War on Terrorism Service Medal

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

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

Chronological Listing of Significant Service Events: 

040707:	Physical Therapy consult report:  Applicant is 23 y/o male with mild osteoporosis-etiology.  Applicant needs rehab and strengthening exercises.  Plan:  competent medical authority instructed Applicant to start walking program in pool along with scapular strengthening/postural exercises.  Applicant instructed to verbalize understanding.

041126:	NAVHOSP Jacksonville, FL, report of medical board.  It was the recommendation of the board that the Applicant be returned to eight months limited duty ashore, within CONUS, in an area with orthopedic care available at monthly intervals, and physical therapy as required, with reevaluation at the end of that time.   

050405:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 050331, tested positive for THC.

050418:	Report and Disposition of Offenses:  Charge I: Violation UCMJ, Article 112a: Wrongful use of controlled substance.  

050419:	Applicant demanded trial by court-martial.

050419:	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.

050419:	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.

050427:	Commanding Officer recommended to Commander, Navy Region Southeast that the Applicant be discharged under other than honorable conditions by reason of misconduct -drug abuse.

050503:	Commander, Navy Region Southeast, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service record missing evaluation/performance reports.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050523 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 did not submit any decisional issues.

The Applicant is requesting a discharge characterization upgrade to honorable.  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 his violation of Article 112a (Wrongful use, possession, etc. of controlled substances) of the UCMJ.  Violation of UCMJ Article 112a is considered a serious offense 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 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 11, effective 
29 April 2005 until Present, Article 1910-146, 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