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Docket No. ND04-01429

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

ex-AKAN, USN
Docket No. ND04-01429

Applicant’s Request

The application for discharge review was received on 20040917.  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 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 - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident in five years of service with no other adverse action.  I made one mistake and regret it to this day.  That incident happened once and has not happened since.  Please consider this request.  Thank you.”

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):

	Active:   USN			881201 - 920908	HON
	Inactive: USNR (DEP)	880927 - 881130	COG

Period of Service Under Review:

Date of Enlistment:  920909		Date of Discharge:  930722

Length of Service (years, months, days):

	Active:    00  10  14
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  9			AFQT:  78

Highest Rate:  AK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (2)	Behavior:  3.90 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, SASM, KLM, SSDR (2), NUC, BER

Days of Unauthorized Absence:  None

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:

920909:	Applicant reenlisted for 4 years.

930610:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance between 930428 and 930528.
	Award:  Forfeiture of $450 per month for 2 months, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

930615:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s nonjudicial punishment.

930615:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930625:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930714:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930718:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

930719:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Random urinalysis on 930528.  Physician found Applicant not dependent.  Commanding Officer recommended separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930722 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:  The Applicant states his discharge was based on one isolated incident in “5 years.” 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 a 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, 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.