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Docket No. ND04-01364

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

ex-AR, USN
Docket No. ND04-01364

Applicant’s Request

The application for discharge review was received on 20040902.  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 review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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

Applicant’s issues, as stated on the application:

“Issue #1.  My discharge is improper because, my recruiter, (at Cortana Mall Baton Rouge, Louisiana 70816) told me that when I got to my “A” school, I could request to be tested for “ADD” and or “ADHD.”  I did not know that this information had to be in my contract.  At my “A” school, (Pensacola, FL.) the medical doctors refused to test me, nor would they allow Tri-Care medical benefits to cover the test.  At my own will and self-judgment, I paid for the test by a local doctor and psychologists.  I was awarded an other than honorable discharge, and I feel I was neglected and used.  That is my issue.  If you need more information Sir or Mama, please contact me, and I will be more than happy to get the information to you.  Thank you for your time.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020726 - 021028	COG
	Active:   			None

Period of Service Under Review:

Date of Enlistment:  021029		Date of Discharge:  030701

Length of Service (years, months, days):

	Active:    00  08  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  46

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  2.00(1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*Not observed

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:

030521:	Applicant diagnosed as Axis I:  Malingering.  The clinical impression is that the member is not mentally ill but manifests a pattern of character and behavior which is of such severity as to render the individual incapable of serving adequately in the Navy.  Based on the history gathered by the NATTC Mental Health Department, AR B_’s main focus is on getting discharged from the Navy by making multiple medical complaints to avoid duty and by deliberate use of illicit drugs.  Furthermore the member acknowledged deliberate failure to disclose his history of alcohol and drug use and psychiatric history upon enlistment.

030523:	NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received on 030520, tested positive for amphetamine and cocaine.

030528:	NJP for violation of UCMJ, Article 83:  Fraudulent enlistment, violation of UCMJ, Article 112a (2 Specs):  Wrongful use of a controlled substance.
	Award:  Forfeiture of $575.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

030626:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse and by reason of misconduct due to commission of a serious offense.

030626:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

030626:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  “Airman Recruit B_ was confirmed positive for the use of amphetamine and cocaine through urinalysis testing by Naval Drug Laboratory, Jacksonville, FL [citation omitted].  He also perpetrated a fraudulent enlistment when he failed to disclose alcohol and drug use as well as psychiatric treatment prior to entry into the naval service…”

030626:	Commander, Naval Personnel Development Command, directed the Applicant's discharge as 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 20030701 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, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that he tested positive for amphetamine, a drug prescribed to him by a local doctor.  Despite the Applicant’s contentions, there is credible evidence in the record that the Applicant used illegal drugs.  The record contains statements by the Applicant detailing his illicit drug use in an effort to be discharged from the military.  Furthermore, the record contains evidence that the Applicant tested positive for cocaine in addition to amphetamine.  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.  Clearly, the evidence of record demonstrates that the Applicant was responsible for his conduct and that he should be held accountable for his actions.  Relief denied.

The Applicant implies that his misconduct was the result of feeling used and neglected over alleged misrepresentations by his recruiter.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  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.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.