Author: CAP
Last saved by: Department of the Navy
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Docket No. ND01-01140

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

ex-AMSAN, USN
Docket No. ND01-01140

Applicant’s Request

The application for discharge review, received 010829, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020419.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  If you look, my scores were pretty good and I always did my best.
2.  I received a boot camp medal ranking me 4^th out of 280 recruits.
3.  There are 2 letters in my record from the CO of my squadron although they do not pertain to this matter they reflect my in service attitude at that time.
4.  After racing to E-3 I passed the E-4 test twice but was P.N.A. due to a 110 percent over manned job rating.
5.  Although to be an honest person I cannot say I had a few years apron discharge that were rough, 2 more kids and a solid job mellowed me back down to being a responsible citizens I should be.
6.  Although my discharge shows and abundance of drug use in the urinals test at the time I cleaned up completely and am drug free and have been for years.
If at all possible, could you please take these into consideration when making your judgment, I would greatly appreciate it.
7.  My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].
8.  I received awards and decorations.
9.  I received letters of recommendation.
10.  My record of promotions showed I was generally a good service member.
11.  I have been a good citizen since discharge.
12.  My use of drugs impaired my ability to serve.
Documentation

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

Copy of DD Form 214
Five pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900427 - 900711	COG

Period of Service Under Review:

Date of Enlistment:  900712		Date of Discharge:  930312

Length of Service (years, months, days):

	Active:    02  08  01
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rate:  AMSAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.60 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  8

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

900717:	Applicant briefed on Navy's policy on drug and alcohol abuse.

930106:	NAVDRUGLAB, San Diego, CA reports applicant urine sample, received 921228, tested positive for amphetamine, methamphetamine and THC.

930108:	Medical evaluation for drug abuse found the applicant to be drug dependent and recommended for separation via VA for treatment.  

930121:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from his unit from 0700, 11Jan93 to 1430, 19Jan93 (8 days/surrendered), (2) Unauthorized absence from 0700-0730, 20Jan93, violation of UCMJ, Article 92: Failure to obey a lawful order on 11Jan93, violation of UCMJ, Article 112A (3 specs): (1-3) wrongfully used methamphetamine, amphetamine and marijuana on 28Dec92.
	Award: Forfeiture of $5000 per month for 1 month, restriction for 60 days.  No indication of appeal in the record.

930128:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your violation of UCMJ Article 112A (3 specifications) - Wrongful use of controlled substance which has been punished at a nonjudicial punishment proceeding during this current enlistment, and Misconduct due to Commission of Serious Offenses as evidenced by your Violation of UCMJ Art. 112A (3 specifications) - Wrongful use of a controlled substance, and Violation of UCMJ Art. 92 - Failure to obey a lawful order or regulation which have been punished at a nonjudicial punishment proceeding during this current enlistment.

930128:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930204:	NAVDRUGLAB, San Diego, CA reports applicant urine sample, received 930126, tested positive for amphetamine, methamphetamine and THC.

930204:	Drug and Alcohol Abuse Report: Amphetamines abuse, four to seven times per week, ashore off duty.  Random urinalysis 921228.  Physician found applicant dependent and recommended separation via VA hospital.  Commanding officer recommended separate via VA hospital.  Comments: AMSAN (applicant) has been in the Navy a short period of time.  He was given a pg 13 for fraudulent entry into the naval service on 27 February 1992 for the above arrest record, and also required a drug/alcohol waiver.  SNM checked into this command on 27 December 1992 and was UA from 11 January 1993 until 19 January 1993, then entered restriction on 21 January 1993.  We have been unable to evaluate his military performance. Potential for future naval service is considered poor.  SNM was evaluated by Branch Medical Clinic, NAS Miramar, and diagnosed as dependent on drugs and alcohol.  SNM has been recommended for separation via VA.  AMSAN (applicant) refused VA treatment.

930211:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense. 

930224:	BUPERS 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 930312 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).

Issues 1-4 and 7- 10.  After reviewing the applicant’s service records and supplemental documentation provided,  the board determined that the negative aspects of the applicant’s service significantly outweighed his positive contributions.  Specifically, after being made aware of the Navy’s drug policy, the applicant was found guilty of using controlled substances (amphetamines, methamphetamines, and marijuana).  At the same NJP the applicant was found guilty of violation of Article 92.
 
Issues 5, 6, 11.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

Issue 12 states that his ability to serve was impaired by his drug use.  The NDRB agrees that the applicant’s illicit drug use was a factor in the discharge.  The applicant’s illegal drug use (violation of UCMJ Article 112a) and violation of UCMJ, Article 92 formed the basis of his separation.  The applicant was offered VA treatment for his drug use upon separation and he refused treatment.  The discharge was proper and equitable.  Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended but not required. 

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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/A9201/A9203/A9221/A9317/A9439/