Author: CAP
Last saved by: Margaret L. Ryan
Company: NCPB

Docket No. ND99-00104

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

ex-AA, USNR
Docket No. ND99-00104

Applicant’s Request

The application for discharge review, received 981022, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing in the Washington National Capital Region.  The applicant listed Disabled American Veterans as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990927.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Equity regarding the character of discharge.

2.  After careful review of the petitioner's record, it is inportant the board consider all contributory factors surrounding this case coupled w/the inpetuosity of his youth and any and all reasonable doubt be resolved in favor of the petitioner.

Documentation

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

Letter from applicant to Congressman dated September 14, 1998
Letter to NCPB from applicant dated October 9, 1998
Letter from House of Representatives to applicant dated October 1, 1998
Letter from BCNR to House of Representatives dated September 25, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	940616 - 940816	COG

Period of Service Under Review:

Date of Enlistment:  940816		Date of Discharge:  970815

Length of Service (years, months, days):

	Active:    03  00  00
	Inactive:  None

Age at Entry:  21			Years Contracted:  8

Education Level:  12			AFQT:  59

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF 		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM, BERX2, AFSM 

Days of Unauthorized Absence:  4 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

961127:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Forfeiture of $427.00 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

970725:	NJP for violation of UCMJ, Article 112A:  Wrongful use of Cocaine.
Award:  Forfeiture of $505.00 per month for 2 months, restriction and extra duty for 45 days, reduction to AA.  No indication of appeal in the record.

970725:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your service record.

970725:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970802:	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 recommended discharge under other than honorable conditions.

970813:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments: I concur with the finding and recommendations of the Board.  I recommend that member be separated from the Naval Service with an Other Than Honorable discharge. 

970813:	Commander, Cruiser Destroyer Group TWO directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970815 under other than honorable conditions for misconduct due to drug abuse (use) (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 proper and equitable (C and D).

The applicant raised an equity issue based upon the fact he was undergoing medical treatment and consumed various prescribed drugs at the time of his urinalysis test. The Board found none of the drugs cited by the applicant contain cocaine.  The Disabled American Veterans also requested the board consider all contributory factors including the age of the offender in this case.  The Board considered all the evidence in this case and found the discharge characterization to be equitable and proper.  Additionally, the Board determined the applicant was 21 years old when he entered the service and 24 years of age when he was discharged shortly after the urinalysis determined cocaine in his system.  Accordingly, relief is not warranted in this case. 
   
Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C, Change 16, effective 01 Jul 97 until [current]), Article 3630620  SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑  DRUG ABUSE

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX: A6600/A9301/A9321/A9317/A0157/A9217