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Docket No. ND02-00907

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

ex-MSSR, USN
Docket No. ND02-00907

Applicant’s Request

The application for discharge review, received 020612, 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 listed the Disabled American Veterans as the representative on the DD Form 293.  Subsequent to the application the Applicant changed representation to Veterans of the Vietnam War, Inc.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311.  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, as submitted

1.  I (Applicant) verbally stated to my supervisor, "I've got a drug problem."  I was asked to give a urine drop for drugs on the spot which came back negative on or about 01 Nov, 88.  I was given restriction with a pending captain's mast.  Before the hearing I missed work.  When I returned to work my supervisor gave me a choice.  The choice was to waive my captain's mast and accept an O.T.H. discharge or receive additional restrictions.  The counseling I received at that time from my supervisor preseuaded me to accept waiving my captain's mast, so I did.  I could not afford an attorney.  I feel the captain's mast hearing would have allowed my case to be heard and I would have been allowed to persue my career in the United States Navy.  I would like to upgrade my discharge to General.  Respectfully,

Documentation

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

Applicant's DD Form 214 (2 copies)
Appointment of Veterans Service Organization as Claimant's Representative dated February 17, 2001
Letter from Applicant changing representation dated July 24, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880108 - 880131	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880201		Date of Discharge:  890223

Length of Service (years, months, days):

	Active:    01  00  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  MSSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.80 (2)	Behavior:  1.80 (3)		OTA:  2.25

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  2

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:

880203:	Applicant briefed on Navy's policy of drug and alcohol abuse.

881101:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: cocaine.
	Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 7 days.  No indication of appeal in the record.

881207:	Drug and Alcohol Abuse Report:  Cocaine abuse, ashore off duty.  Self referral/disclosure 881031.  CAAC found Applicant not dependent and recommended separation.  Physician found Applicant not dependent.  Commanding Officer recommended processing for separation.  Comments: Determined not dependent, with no potential for future naval service.  Recommend separation.

881207:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

881212:	Applicant disqualified from submarine duty.  

890118:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the service record.

890118:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

890203:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890209:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890221:	Applicant to unauthorized absence 0730, 890221.

890223:	Applicant from unauthorized absence 0800, 890223 (2 days/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 890223 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).

Issue 1.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Applicant’s regret at waiving his rights does not mitigate his misconduct.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The discharge was proper and equitable.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a 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 "afls14.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/A9319/A0209/A9439/A9221