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Docket No. ND04-00808

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

ex-ADAR, USNR
Docket No. ND04-00808

Applicant’s Request

The application for discharge review was received on 20040420.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20041029.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I have served my Country Honorable and appropriately.  And for having a roommate whom was at fault and then discharging me For Action not appropriately right where taken.  20040104”

2.  “I [Applicant] respectfully request to change my discharge to honorably.  I did not induce substances like my roommate and for me well it was because he did them in the room which I sleeped in.  I never used drugs in the room or anywhere since I was sworn in the Navy.  Sir.”

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: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950726		Date of Discharge:  961130

Length of Service (years, months, days):

	Active:    01  00  13
	Inactive:  00  03  21

Age at Entry:  19			Years Contracted:  8

Education Level:  10			AFQT:  40

Highest Rate:  ADAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No marks found in service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

951118:	Applicant to active duty for 3 years.

960711:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960702, tested positive for amphetamine/methamphetamine.

961004:	NJP for violation of UCMJ, Article 112A: Wrongfully use methamphetamine, on 960628.
	Award: Reduction to E-1.  No indication of appeal in the record.

961004:	Applicant declined in-patient treatment at a Navy Hospital.

961004:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis sample submitted on 960628.

961004:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit a statement.

UNDATED:	Applicant’s statement.

961007:	Controlled Substance Abuse Evaluation: Applicant found has abuse drugs but is not dependent.  Applicant could benefit from treatment for abuse of alcohol/drugs.

961008:	Commanding Officer recommended general (under honorable conditions) discharge by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments: [A random sample urinalysis was conducted by this command on 28 June 1996 as a part of our drug deterrence program.  Members chosen to submit samp1e had social security numbers- that ended either in a 4 or 9.  Airman Recruit J_ (Applicant) was one of the individuals who submitted a sample, one that would test positive for amphetamines/methamphetamines.   He admitted to one time use of amphetamines and claims it was an isolated incident.  A medical eva1uation has found him to be not dependent, and Airman Recruit J_ (Applicant) has declined to participate in a rehabilitation treatment program.  Airman Recruit J_'s (Applicant's) job performance has been above average, even after this incident.  He has cooperated with the Naval Criminal Investigation Service for several months, providing them with valuable information.  Although Airman Recruit J_ (Applicant) waived his right to an administrative Board, an Other Than Honorable discharge would be inappropriate in this matter.  He has made a mistake, and the time has come for both him-and the command to move on.  The punishment he received at Captain’s Mast and administrative separation from the naval service is an adequate resolution to this matter.  After considering all relevant facts, I most strongly recommend that Airman Recruit J_ (Applicant) be separated from the naval service with a -General discharge.]

961031:	Commander Naval Air Force, U.S. Pacific Fleet 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 19961130 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).

Issues 1-2.  The Applicant contends that he served the United States well and his roommate’s illicit drug use caused the Applicant to test positive for illegal drugs.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 nonjudicial punishment proceedings for a violation of Article 112a of the UCMJ.  Further, the Applicant admitted illegal drug use in a letter to his Commanding Officer.  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 is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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 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.