Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND99-00560

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

 ex-AR, USNR
Docket No. ND99-00560

Applicant’s Request

The application for discharge review, received 990312, requested that the characterization of service on the discharge be changed to General/under Honorable conditions.  The applicant requested 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 000110.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My undesirable discharge was inequitable because I turned myself in.  I did not want to indanger others at my next command.  I realize that using marijuana is illegal in the Navy.

2.  I received 3 urinalysis at the naval Air Station at Lemoore, California.  All of them were negative.

3.  I feel that I used two words of the Navy's motto that described my action and those words are honor and courage.

4.  Please review my application and read my letter and judge me fairly.  I give you permission to check my files medical and personnel records.

Documentation

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

Applicant's letter to the Board
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  970731		Date of Discharge:  980311

Length of Service (years, months, days):

	Active:    00  06  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  28

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT –Drug abuse (Use), authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

970820:	Commenced 36 months active duty under the Airman Apprenticeship Training Program.

980123:	NJP for violation of UCMJ, Article 112A:  wrongful use of controlled substance.
	Award:  Forfeiture of $189 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

980211:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.

980218:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use).  Commanding officer’s comments (verbatim):  "Drug abuse by any member of the naval service is intolerable.  The consequences of illegal drug abuse are clearly stated and leave no doubt of uncertainty as to the Navy's policy.  Based on a review of this case, discharge with an OTH is strongly recommended.

980225:	GCMCA (CO, NAS, Lemoore) 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 980311 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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims he turned himself in after use of illegal drugs, rendering his discharge inequitable.  There is no indication that the applicant turned himself in to the proper command representative or to a medical facility to qualify for self-referral amnesty.  Additionally, the self-referral program does not exempt an individual from administrative separation.  Admission of drug abuse is still a violation of the UCMJ.  The Board assumes regularity in the absence of proof of impropriety on the part of the government.  Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant claims he received 3 urinalysis tests and all were negative.  The fact remains, the applicant admits to using illegal drugs, a violation of the UCMJ, punishable my court-martial, and requires mandatory processing for separation.  Relief denied.

In the applicant’s issue 3, the Board determined this is not a decisional issue.  No comment required.

In the applicant’s issue 4, the Board determined this is not a decisional issue.  No comment required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation 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/A9455/A9317/A0157/A9217/A9439