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Docket No. ND03-01338

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

ex-FR, USN
Docket No. ND03-01338

Applicant’s Request

The application for discharge review was received on 20030806.  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.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D. C. area. The Applicant did not respond.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans. 

Decision

A documentary review was conducted in Washington, D.C. on 20040526.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s counsel (Disabled American Veterans):

“1.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from September 3, 1986 to October 12, 1988 at which time he was discharged due to misconduct-drug abuse (use).

The FSM makes no specific statements or conclusions, but request a decision be made based on a review of the records, and without any supporting documentation. 

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860812 - 860902	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  860903		Date of Discharge:  881012

Length of Service (years, months, days):

	Active:    02  07  03
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  26

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (3)	Behavior:  2.80 (3)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  5

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:

860904:	Applicant briefed on Navy's policy of drug and alcohol abuse.

880118:	NJP for violation of UCMJ, Article 86:  UA from unit from 871228 until 880104.  NJP, violation of UCMJ, Article 112A:  Wrongful use of marijuana on 871027.
	Award:  Forfeiture of $376.00 per month for 2 months, restriction for 45 days, reduction to FA.  The reduction in rate to FA is suspended for a period of six months.  No indication of appeal in the record.

880426:	Vacation of Suspension:  The reduction in rate to FA which was awarded and then suspended for a period of six months at CO’s NJP on 880118 is hereby vacated due to a subsequent violation of the UCMJ.

880426:	NJP for violation of UCMJ, Article 112A:  Wrongful use of cocaine on 871220.
Award:  Forfeiture of $335.00 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  No indication of appeal in the record.

880615:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a. NJP of 18 January 1988 for wrongful use of marijuana on 871027 and b. NJP of 880426 for wrongful use of cocaine on 871220.

880615:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880706:	NJP for violation of UCMJ, Article 128, assault consummated by battery.
	Award:  Restriction and extra duty for 5 days.

880808:	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.

880817:	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 recommendation of the administrative board.  FR F_ (Applicant) is being processed in accordance with reference (a) for drug abuse.  He is scheduled for a CAAC evaluation on 880822 prior to being seen by a medical officer for determination of his drug dependency.  Upon completion, the information will be forwarded by message.  Further retention on active duty is not in the best interest of the member or the Navy.  Therefore, it is recommended that FR F_ (Applicant) be separated from the naval service with an other than honorable discharge by reason of misconduct.

880916:	Drug and Alcohol Abuse Report:  Polydrug abuse.  CAAC found Applicant not dependent and recommended separation.  Physician found Applicant not dependent.  Potential for further productive military service appears to be poor.  Potential for continued drug abuse appears to be high.  

880917:	CNMPC 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 19881012 under other than 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 proper and equitable (C and D).

Issue 1.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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.
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