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

FOR OFFICIAL USE ONLY

 ex-AR, USNR
Docket No. ND05-00678

Applicant’s Request

The application for discharge review was received on 20050309.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119.  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 and reason for 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:

“I was told at Captains Mass that with the completion of a drug course or rehab that my discharge could be upgraded.  I have successfully completed a drug course.”

Documentation

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

Certificate of Achievement (8 week Drug Treatment Program) dtd October 29, 2004
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19931112		Date of Discharge:  19941223

Length of Service (years, months, days):

	Active:    00  10  29 
	Inactive:  00  02  13

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18 

Years Contracted:  8

Education Level:  12				AFQT:  50

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

940125:	Commenced active duty for a period of 36 months under the Airman Apprentice Program.

940701:	Applicant to unauthorized absence at 0700 on 940701.

940701:	Applicant from unauthorized absence at 0830 on 940701 (1 hour and 30 minutes/surrendered).

941109:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana.
	Award:  Forfeiture of $416.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

941110:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
 
941110:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

941102:	Commanding Officer, USS THEODORE ROOSEVELT recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “AR N_ (Applicant) was disciplined at NJP for wrongful use of marijuana.  AR N_ (Applicant) has no potential for further service.  I recommend that he be discharged with an other Than Honorable Discharge.”

941121:	Medical Evaluation by Command DAPA CVN 71 indicates applicant admits to use, denies having a problem, states it was a one time use.  Applicant not psychologically or physiologically dependent on marijuana.

941126:	Drug and Alcohol Abuse Report:  Marijuana abuse as a result of a random urinalysis.

941209:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug use.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941223 by reason of misconduct due to drug abuse (A) 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 (B and C).

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.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

The Applicant contends that he was told that after completion of a drug rehabilitation program he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded upon the completion of drug rehabilitation.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered the Applicant’s completion of a Alabama Department of Corrections Drug Treatment Program.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  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.  The Applicant can provide any additional 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), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

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

C.  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