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

FOR OFFICIAL USE ONLY

 ex-AR, USN
Docket No. ND05-00488

Applicant’s Request

The application for discharge review was received on 20050131.  The Applicant requested a personal appearance discharge review in the Washington National Capital Region to change the characterization of service to general (under honorable conditions).  The Applicant did not designate a representative on the DD Form 293; subsequently he obtained representation by American Legion.  On 20060430 the Applicant contacted the American Legion requesting that the hearing be postponed for six months.  The American Legion representative contacted the NDRB requesting a postponement to the 20060508 scheduled hearing date.  The NDRB informed the American Legion representative that the Applicant’s case was beyond the 15-year statutory limit for review by this Board and that the case was being converted to a documentary review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060504.  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application: 

“I Respectfully Request an upgrade on my Discharge because of my Hearing Loss Due to the fact of working on The Flight Deck and Around Loud noises of aircraft.  Amongst Other Things That will come about on my Hearing.

“Respectfully, [signed] F_ A. D_ (Applicant)”

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

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to the Applicant’s petition.

Our review of the service record reflects that this former member maintained satisfactory 3.3 performance / 3.2 conduct markings.  He was awarded NJP on 900623 for VUCMJ, Article 112a; NJP on 900730 for VUCMJ, Article 86 and NJP on 901108 for VUCMJ, Articles 91, 92, 112a.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 3630620.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he would like to establish eligibly for VA benefits so he can file a compensation claim for hearing loss that he believes is due to noise exposure while in the Navy.  He has not submitted additional documentation for consideration.

Following our careful review of the evidentiary record, we opine that the issues raised on DD Form 293 amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, we rest this case on the evidence of record.

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, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.

Documentation

The Applicant stated:  “I will bring supporting documents upon Hearing.”

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19881128 – 19890117		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890118		Date of Discharge:  19901220

Length of Service (years, months, days):

	Active:    01 11 03  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  40

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (2)		Behavior:  3.2 (2) 		OTA:  3.6 (2) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

881123:	Applicant granted enlistment waiver for non-minor misdemeanor.

890121:	Applicant signed statement of understanding regarding the Navy's policy against drug and alcohol abuse.

890221:	Applicant signed statement of understanding regarding the Navy's policy against drug and alcohol abuse.

891117:	Applicant signed statement of understanding regarding the Navy's policy against drug and alcohol abuse.

900612:	NAVDRUGLAB, JACKSONVILLE, FL, reported Applicant’s urine sample, received 900604, tested positive for THC.

900623:	NJP for a violation of the UCMJ, Article 112a (wrongful use of a controlled substance).
	Award:  60 days restriction, 45 days extra duty, reduction to E-1.  No indication of appeal in the record.  Process for administrative separation.

900623:	Retention Warning:  Advised of deficiency (wrongful use of a controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900711:	CAAC, USS THEODORE ROOSEVELT (CVN-71):  Applicant screened following positive urinalysis for THC; found not psychologically dependent on alcohol or drugs.  
Recommend:  attend a CAAC Level II, if retained; be evaluated by a medical officer for confirmation of/to rule-out dependency per reference (a); be administratively discharged via the Veterans Administration if dependent.

900714:	Medical Officer screening:  Applicant stated his positive test result was the result of a one-time use.  
Diagnosis:  Not THC dependent.
Recommendation:  CAAC Level II.   

900723:	Applicant to unauthorized absence.

900730:	NJP for a violation of the UCMJ, Article 86 (unauthorized absence, on 900723).
	Award:  15 days at Correctional Custody Unit, NAS Jacksonville.  No indication of appeal in the record.

900910:	Applicant enrolled in CAAC substance abuse program.

900920:	Applicant signed acknowledgement of his aftercare program.  He did not select whether he did or did not agree to the plan.  However, he did state, “I really don’t I need to go to any AA meetings anymore”. 

900921:	Commanding Officer, Naval Air Station, Cecil Field, FL to Commanding Officer, Strike Fighter Squadron 15: Applicant completed CAAC substance abuse program.  Aftercare program consists of 6 CAAC aftercare group meetings and urinalysis screening for 6 months.

901105:	NAVDRUGLAB, JACKSONVILLE, FL, reported Applicant’s urine sample, received 901025, tested positive for cocaine.

901108:	NJP for violations of the UCMJ, Article 91 (disrespect toward a petty officer), Article 92 (dereliction in the performance of duties), and Article 112a (wrongful use of cocaine).
	Award:  Administrative separation.
	No indication of appeal in the record.

901108:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

901111:	Advised of his rights and following consultation with counsel the Applicant elected to waive all rights with the exception of the right to obtain copies of the documents used to support the basis for the separation and the right to a minimum of two working days to respond to the notice of recommendation for discharge.

901114:	Commanding Officer, Strike Fighter Squadron 15 recommended to Commander Naval Military Personnel that AR D_ (Applicant) be discharged with a under honorable conditions (general) characterization of service by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “AR D_ (Applicant) has repeatedly failed to respond to all efforts to become drug-free.  By testing positive for Cocaine on his mandatory weekly drug testing program, he has become an administrative burden to this command and the United States Navy.  I strongly recommend that he receive a General discharge from the Naval Service.”

901128:	CNMPC 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 19901220 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  

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.  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.

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 2  nonjudicial punishment proceedings for violations of Articles 86, 91, 92 and 112a (2 specifications)  of the UCMJ.  In addition, the Applicant received a retention warning, which he violated with continued misconduct.  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.  The Applicant has exhausted his opportunities for review by the NDRB.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use, possession, etc., of controlled substances.

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