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Docket No. ND04-00732

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

 ex-UTCR, USN
Docket No. ND04-00732

Applicant’s Request

The application for discharge review was received on 20040331.  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.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20041008.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because no form of rehabilitation or counseling was considered an option in an attempt to deal with a drug addiction that had incurred while enlisted in the USN.”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reflects that this former member maintained satisfactory performance and conduct markings with an OTA of 3.5 and earned the NDSM.  He was awarded NJP on 930712 for VUCMJ, Arts. 92; NJP on 940726 for VUCMJ, Art. 92; NJP on 940811 for VUCMJ, Arts. 86 (2 specs), 92 and NJP on 949818 for VUCMJ, Art. 112a (2 specs).  His due process included an ADB which determined that he possessed and used a controlled substance and recommended separation UOTHC.  His CO concurred and BUPERS directed that he discharged Under Other Than Honorable Conditions due to the misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his characterization is too harsh.  He became addicted to drugs while in the Navy and should have been offered some type counseling or rehabilitation vice being less than honorably discharged.  He has any submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920805 - 930209	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930210		Date of Discharge:  941215

Length of Service (years, months, days):

	Active:    01  10  06
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  47

Highest Rate:  UTCA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.40 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LoA (2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930709:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order or regulation on 930605.
	Award: Forfeiture of ½ month pay for 1 month, restriction and extra duty for 7 days.  Suspended for 6 months.  No indication of appeal in the record.

930929:	Counseling: Advised of deficiency (late to work), notified of corrective actions and assistance available.

940106:	Counseling: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available.

940125:	Counseling: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available.

940309:	Counseling: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available.

940627:	NJP for violation of UCMJ, Article 92: Fail to obey lawful order issued by the Commanding Officer by wrongfully failing to muster at the time prescribed to appointed watch of Duty Driver on 940604.
	Award: Forfeiture of $466.65 per month for 2 months, reduction to E-1.  Suspended for 6 months.  No indication of appeal in the record.

940811:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence on 0700, 940804, to wit: morning muster at the Seabee Shop, (2) Absent from appointed place of duty on 940806 to 0810, 940807,violation of UCMJ, Article 92: Failure to obey order or regulation on 940808.
	Award: Forfeiture of $416 per month for 2 months, legal hold for 45 days with suspension from duty.  No indication of appeal in the record.

940816:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 940810, tested positive for amphetamine/methamphetamine.

940819:	Medical Evaluation:  Applicant not drug dependent, recommend Level II CAAC treatment if retained in the service.

940822:	NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongfully possess an amount of amphetamine/methamphetamine on 940808, (2) Wrongfully use amphetamines/methamphetamines.
	Award: Restriction to legal hold for 60 days.  No indication of appeal in the record.

940822:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violation of the Uniform Code of Military Justice Article 112a, wrongful possession and use of a controlled substance (amphetamine/methamphetamine) punished at nonjudicial punishment 930822 and by reason of misconduct due to commission of a serious offense as evidenced by failing to obey a lawful order punished at nonjudicial punishment 930709, failing to obey a lawful order punished at nonjudicial punishment 940811 and wrongfully possessing and using a controlled substance (amphetamines/methamphetamines) punished at nonjudicial punishment 940822.

940824:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

941005:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed drug abuse and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

941031:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse.

941121:	NJP for violation of UCMJ, Article 86:  Absence without authorization, Article 92, Failure to obey or order or regulation, 112a, Wrongful use possession, etc of a controlled substance.
	Award: Restriction to legal hold for 60 days, forfeiture of ½ month’s pay for 2 months.  No indication of appeal in the record.

941123:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941215 under other than honorable conditions for misconduct due to commission of a serious offense (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:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity is evident during the Applicant’s enlistment.  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.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by five nonjudicial punishment proceedings for multiple violations of Articles 86, 92 and 112a of the UCMJ.  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.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

The Applicant contends that he was inequitably denied treatment for his drug addiction while in the Navy.  On 940819, the Applicant presented for drug dependency screening as a result of his positive urinalysis for methamphetamines.  The medical evaluation found no evidence of drug dependency and recommended a Level II CAAC treatment only if the Applicant was retained in the service.  Shortly thereafter, an administrative discharge board concluded that the Applicant had committed misconduct and recommended separation under other than honorable conditions.  The Applicant was separated on 941215.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  Treatment is required for members who are determined to be dependent on drugs.  The Applicant was determined to not be drug dependent by competent medical authority.  As such, he was not entitled to receive treatment, as a matter of right, before his discharge.  Relief denied.

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

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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.