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

 ex-FA, USN 
Docket No. ND04-01421

Applicant’s Request

The application for discharge review was received on 20040914.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the Applicant’s administrative discharge processing was discovered by the NDRB.  The Board’s vote was unanimous that the character and the reason for discharge shall change.  The discharge shall change to:  HONORABLE/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My service characterization is not reflected with this discharge although a mistake that I regret deeply is.  I wanted to be with my family and in a moment of weakness I made a decision that was dishonorable to my service to myself, and to my family.  I realized the disappointment that I brought out of my superiors and the hurt and pain I put my family through in the following months.  What I thought would bring me closer has actually pushed me away.  I can not provide for them the assurance and stability they need and deserve.  The discharge from the service I believe has been the ultimate consequence for me.  I no longer am able to serve my country in its time of need.  Although to my own defense I must note that prior to this event I was a sailor headed to superior achievement without a blemish, and all I ask is that I am able to provide for my family with a second chance.  To get a good job and an education so that I can make up what I took from them.  Enclosed you will find statements from superiors that I worked for that support my character and my love for my country.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Administrative Discharge Board witness questionnaire, IC2 J_ G_, dated May 5, 2003 (2 pages)
Administrative Discharge Board witness questionnaire, GSMC W_ B. S_, undated  (2 pages)
Administrative Discharge Board witness questionnaire, GSE1 H. S. M_, undated  (2 pages)
Evaluation Report & Counseling Record, July 16, 2001 to May 20, 2002
Engineering Mechanical Core Assignment Check-Off Sheet, undated
Student Evaluation Record, undated
NAVDRUGLAB, Great Lakes MSG R 181643Z FEB 03 
Engineering Mechanical Core Student Progress Record, February 10 and 26, 2003  (2 Pages)
Evaluation Report & Counseling Record, July 16, 2001 to May 20, 2002  (Duplication of first page but second page belongs to different evaluation)
Administrative Discharge Board witness questionnaire, ENC H_ W. L., undated (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR 		960422 - 960813	ELS (failed to Grad)
Inactive: USNR (DEP)	000731 - 000810	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000811		Date of Discharge:  030602

Length of Service (years, months, days):

	Active:    02  09  22
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (8 month extension)

Education Level:  12			AFQT:  36

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks)

Performance:  3.70 (3)		Behavior:  3.70 (3)		OTA:  3.44

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, MUC, NDSM, AFEM, SSDR

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

030218:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 030212, tested positive for THC.

030228:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana.
	Award:  Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

030228:	Applicant refused to be screened by a medical doctor and declined to accept any and all recommended treatment for alcohol and/or drug dependency.  [Extracted from Commanding Officer’s Recommendation Msg dtd May 12, 2003].

030228:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030303:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

030506:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and by vote of 2 to 1, recommended discharge be characterized as General (Under Honorable Conditions).  The Administrative Discharge Board was composed of CDR S_ M_, USN, ITC S_ C_, and ETC C_ T_.
	Dissenting member comments:  “FA C_ (Applicant) was positive on second not first drug test.  This leads one to believe he used drugs after returning from leave.  Therefore he knowingly used drugs and I can’t see giving him a General.  If he had been in the navy longer than 3 years I could have considered a General.  Not enough history to make this decision.”

030512:	Commanding Officer, Service School Command, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  “Based on review of all available information in this case, I find no potential for further naval service and endorse the findings and recommendations of the administrative discharge board.”

030602:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to drug abuse, authority:  MILPERSMAN 1910-146.  Applicant was unavailable for signature.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030602 with a general (under honorable conditions) for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was improper. (C).

Issue 1.  In the course of reviewing the Applicant’s service record, the Naval Discharge Review Board did detect a procedural deficiency in the composition of the Applicant’s administrative discharge board.  Applicable regulations require that an administrative discharge board be composed of a senior member holding the rank of O-4 or above and a majority of officers.  The evidence of record indicates that the membership of the Applicant’s administrative discharge board consisted of one officer holding the rank of O-5 and two enlisted sailors holding the rank of E-7.  Based on this evidence, the NDRB concluded that the Applicant’s board was improperly constituted as it was composed of a majority of enlisted personnel.  The NDRB further concluded that this error was of such a nature to afford the Applicant relief.  The NDRB unanimously voted to change the Applicant’s characterization of service to honorable and the narrative reason of separation to secretarial authority.  Relief granted.

The following if provided for the edification of the Applicant.  The NDRB can provide no further relief in this case.   The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 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