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Docket No. ND04-01047

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

ex-PNSA, USN
Docket No. ND04-01047

Applicant’s Request

The application for discharge review was received on 20040616.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the New Jersey Department of Military and Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (NEW JERSEY DEPARTMENT OF VETERANS AND MILITARY AFFAIRS):

1.  “Mr. O_ [Applicant] served two tours in the Persian Gulf.  He has two-sea service Deployment Medals; two Expeditionary Medals to include the 1 good conduct Medal.  It was unjustified for the military to discharge him 8 days short of completing his contract (four years) with on other than Honorable discharge.  The Judge Advocate General Counsel requested in the Alternative Mr. O_ [Applicant] is awarded a General Character Discharge.  This was wrongfully denied by the Commanding Officer.  This was unfair to Mr. O_  [Applicant] who denied Drug use or Abuse because at No time was he Offered Counseling or rehabilitation by his Commanding Officer also Mr. O_ [Applicant] has knowledge of a like kind case where the disciplinary action was to the contrary.  Enlisted NavyMan by the Name of K_ T_ H_ who served in the same Military unit was in violation of use of a controlled substance as indicated in a urinalysis test that indicated Amphetamines.  He is still in the U.S. Navy because he stated He must Have accidentally digest medication that gave him Positive readings for Amphetamines.  This being the case an investigation is warranted as to why Mr. O_ [Applicant] did not receive equal treatment and Protection under the uniform code of Military Justice.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  

Documentation

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

Applicant’s DD Form 214
New Jersey Department of Military & Veterans Affairs documents (4 pages)
Letter of Deficiency, dated May 19, 2003 (4 pages)
Copies of Service Record (3 pages)
Polygraph Examination, dated March 27, 2003 (3 pages)
Applicant’s letter to Congressman, not dated (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990611 - 990616	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990617		Date of Discharge:  030609

Length of Service (years, months, days):

	Active:    03  11  22
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  11			AFQT:  61

Highest Rate:  PNSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.67 (3)		OTA:  2.89

Military Decorations:  None

Unit/Campaign/Service Awards:  NER (2), SSDR (2), 9MM SSR, AFEM (2), GCM, NDSM, MUC

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010425:	Retention Warning:  Advised of deficiency (You demonstrated a lapse in judgment in showing disrespect to a petty officer.  During an appearance before LABOON’s Disciplinary Review Board, you were tasked with completing Extra Military Instruction in the preparation of a training lecture on Proper Military Bearing and Respect.  The lecture was not completed within the designated timeframe, and you were further charged with failure to obey a lawful order.  You must comply with Navy Regulations and standards on correct treatment of personnel, both up and down the chain of command.  You must treat in a more serious nature the basic tenets of military bearing, and understand your place within the chain of command), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030314:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 030310, tested positive for THC.

030410:	NJP for violation of UCMJ, Article 112A:  Wrongful Use of a Controlled Substance.
	Award:  Restriction and extra duty for 45 days, reduction to E-2. 

030414:	Applicant appealed nonjudicial punishment held on 030410.

030414:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

030428:	Applicant’s appeal of nonjudicial punishment denied. 

030527:	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.

030528:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

030603:	COMCRUDESGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030609 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:  Normally, to permit relief, a 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.  Relief not warranted.

The Applicant’s denials were known to the commanding officer, fully contested in front of a Board and re-hashed in the Letter of Discrepancy.  As such, the Applicant’s claims of lack of due process are without merit.

The Applicant’s discharge characterization accurately reflects his service to his country.  There is credible evidence in the record that the Applicant used illegal drugs.  
The Applicant’s service was marred by award of nonjudicial punishment (NJP) for violation of Article 112a of the UCMJ.  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.

Normally, to permit relief, an procedural 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.  Relief not warranted.

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation 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.