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

FOR OFFICIAL USE ONLY

 ex-HTFR, USN
Docket No. ND05-00676

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requested that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary discharge review and designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  After a thorough review of all available 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 characterization 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

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“To: USDVA

This is my explanation regarding my discharge. All that I can tell is the Truth. I never distributed what they say controlled substance-what kind of substance? There never was any substance. I was never found to have any substance.
The same time all this was going on I was in the hospital-I had just come out of a coma after a serious accident with severe head trauma.
I could not walk much less talk and I was on heavy medication when I Felt I was coerced into signing the discharge papers, I never distributed This so called controlled substance it has puzzled me for years I did my Job proudly and worked hard. My last evaluation before my discharge was Perfect 4.0. I think my discharge was given unfairly. I’m proud of my country, and served it proudly-I just want the truth to come out and have a chance for a fair review. I look at it now there was never any evidence because there was nothing
_If the military doesn’t have any evidence how do I find evidence?
_Reasons and Bases (38cfr 3.12 character of discharge)
Moral turpitude offence - generally conviction of a felony - I was never convicted of a felony or any other charge so how can this be the bases for the discharge?
When I signed the discharge papers I was in the hospital just coming out of a coma and highly medicated I did not Know what t I was signing I was never even given a hearing.

Thank you for your time. B_ T K_(Applicant)
[signed]

The Applicant’s representative submitted no additional issues.

Documentation

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

	Applicant’s letter to USDVA, dated February 20, 2005
Applicant’s DD Form 214
Letter from NDRB requesting corrected DD Form 293, dated January 11, 2005
State of Minnesota Department of Veterans Affairs, dated February 23, 2005
	VA Form 21-22, dated February 03, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19891115 - 19891212	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19891213		Date of Discharge:  19930112

Length of Service (years, months, days):

	Active:    03 01 00
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  11 GED			AFQT:  42

Highest Rate:  HTFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (3)		Behavior:  3.6 (3)		OTA:  3.73 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal w/1 Bronze Star, Kuwait Liberation Medal

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: 

891104:	The Applicant acknowledged understanding of the Navy's policy on drug and alcohol abuse.

891106:	The Applicant acknowledged understanding of the Navy's policy on drug and alcohol abuse.

891115:	Pre-service waiver granted for two alcohol related violations.

891214:	The applicant acknowledged understanding of the Navy's policy on drug and alcohol abuse.

920930:	NJP for a violation of the UCMJ, Article 112a (wrongful distribution of a controlled substance) awarded - forfeiture of $441 per month for 2 months, restriction and extra duty for 45 days, and reduction to E-1.  No indication of appeal in the record.

921005:	The Applicant notified by the Commanding Officer, Transient Personnel Unit, Norfolk, Virginia of his 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.

Undated:	The Applicant objected to his discharge, elected to consult with counsel and appear before an Administrative Discharge Board.  

921119:	The Applicant waived his right to an Administrative Discharge Board.

921120:	The Applicant declined alcohol and drug rehabilitation treatment provided by the Veteran’s Administration.  He also requested administrative separation by the most expeditious means possible.

921130:	Commanding Officer, Transient Personnel Unit recommended to the Chief of Naval Personnel the discharge of HTFR K_ (Applicant) under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “It is recommended that HTFR K_(Applicant) be separated with an other than honorable discharge.”

921216:	BUPERS 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 19930112 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

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.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  There are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis for the characterization of a Sailor’s overall service.  The Applicant’s service record documented his violation of the UCMJ, Article 112a (wrongful distribution of a controlled substance).  Separation processing is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged.  The evidence of record clearly documents the Applicant’s blatant disregard for authority and does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Separations under these conditions generally result in an under other than honorable conditions characterization of service.  The Board could discern no impropriety or inequity.  Relief denied.

The Applicant contends he that he did not distribute a controlled substance and does not know what controlled substance he was convicted of distributing.  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.   Nevertheless, he provided nothing to support his contention.  The record documented the Applicant’s NJP held on September 30, 1992, where he was found in violation of the UCMJ, Article 112a for wrongful distribution of a controlled substance.  In the absence of evidence contrary to the record, the Board discerned no impropriety in the Applicant’s discharge.  Relief denied.

The Applicant states that he was coerced to sign his discharge paperwork and did not understand what he was doing as he was just coming out of a coma.  There is no evidence in the record, nor has the Applicant produced any evidence, to support this issue.  The record does document the Applicant’s notification of intended discharge and characterization of service as under other than honorable conditions.  The Applicant initially elected his rights to counsel, to appear before an administrative discharge board, and objected to his discharge.  However, 45 days later he waived his right to appear before the administrative discharge board.  The following day he declined alcohol and drug rehabilitation counseling and requested to be administratively discharged by the most expeditious means possible.  The Applicant’s medical record fails to document the severe head trauma and coma that the Applicant contends resulted in his failure to comprehend the meaning of the discharge paperwork he signed.  The NDRB found no impropriety in the Applicant's discharge.  Relief denied.

The Applicant also alleged that his discharge was unfair according to “reasons and bases (38cfr 3.12)”.  For the edification of the Applicant 38CFR 3.12 (character of discharge) is used by the Department of Veteran’s Affairs in the determination of benefit eligibility.   The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  The Board has no authority to upgrade a discharge for the purpose of providing Veteran’s benefits.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  There is no requirement or law that grants recharacterization based on the issue of obtaining Veterans' benefits such as enhancing employment, housing, medical or educational opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief.  The Applicant’s issue is without merit.  Relief denied.

The Applicant raised the issue of moral turpitude, stating that he was never convicted of a felony.  According to reference (A), a service member may be separated by reason of misconduct due to drug abuse based upon one or more military offenses or civil convictions (including actions tantamount to findings of guilt), for the illegal or wrongful use or possession of a controlled substance.  Furthermore, reference (A) dictates that the characterization of service will normally be considered under other than honorable conditions.   There is credible evidence in the record that the Applicant committed misconduct due to drug abuse.  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.  Applicable regulations do not require that a service member be convicted of a felony to be discharged under other than honorable conditions.  The Applicant’s issue is without merit.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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), effective 15 Aug 91 until 04 Mar 93, 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 (drug abuse).

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