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Docket No. ND05-01244

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

FOR OFFICIAL USE ONLY

 ex-SN, USN
Docket No. ND05-01244

Applicant’s Request

The application for discharge review was received on 20050714.  The Applicant requested that a Board review his record and change the characterization of his service, received at the time of discharge, to honorable.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he is approaching this Board’s 15-year limit of authority.  It was suggested that the Applicant consider a personal appearance hearing at the Washington Navy Yard, Washington, D.C.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060302.  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 Honorable Conditions (General) by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

“My General discharge was inequitable because it was based on one isolated incident in 1 year 11 months 15 days. with no other adverse actions.  My sea service was 1 year 7 months 23 days.”

The Applicant submitted the following additional documentation for the Board’s consideration, in addition to his service and medical records:

Applicant’s DD Form 214 (2)
Statement from Applicant, undtd
Five pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19890508 - 19890705	ELS
		 USNR (DEP)	19890822 - 19891002	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19891003		Date of Discharge:  19910917

Length of Service (years, months, days):

	Active:    01 11 15
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  GED			AFQT:  46

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2)		Behavior:  4.0 (2)		OTA:  3.9 (2)

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/Bronze Star, Navy Unit Commendation

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

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

Chronological Listing of Significant Service Events:
 
890508:	NAVRESCRUITCOM DET ONE determined applicant is not considered a single parent and is eligible for enlistment.  

890705:	Applicant discharged from delayed enlistment program with a characterization of entry-level separation by reason of moral disqualification (fraudulent enlistment).

890822:	The charge of burglary/attempted burglary is classified as a non-minor misdemeanor in the state of California and was considered as such in determining enlistment eligibility.  Pre-service waiver for DEP discharge granted.

891004:	Applicant signed a statement of understanding regarding the Navy's policy on drug and alcohol abuse.

910424:	Medical evaluation by Medical Department, USS DURHAM (LKA 114):  Drug/Alcohol dependence evaluation following arrest and possible DUI (second alcohol incident).  
Diagnosis:	Alcohol abuse/dependent.
	Recommendation: Attend AA/NA meetings, CAAC counseling, appropriate disciplinary action, Family Services Center referral for martial counseling, CREDO, Chaplain.

910610:	Medical evaluation by Fleet Mental Health Unit, Clinical Social Worker:  Stress due to pending divorce and DUI.
Assessment:  Adjustment disorder with depressed mood, alcohol abuse.
Recommendation:  Return to full duty, responsible for behavior, CAAC screening - recommend Level II, CREDO, FSC for relationships and recovery group.  

910613:	NJP for a violation of the UCMJ, Article 112a (wrongful use of a controlled substance, cocaine on or about 91May24).
	Award:  Forfeiture of $422 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

910708:	Medical evaluation by Medical Department, USS DURHAM (LKA 114):  Medical screening for Drug/Alcohol dependency following positive urinalysis for cocaine.  
	Assessment:  Drug abuser, alcohol dependent, requires rehabilitation
Recommendation:  Member has no potential for further useful service and is involved in first drug offense.  Appropriate disciplinary action and administrative separation.  VA treatment for dependence, if requested by member prior to discharge.

910827:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general by reason of misconduct due to drug abuse.

910827:	After being advised of his rights, the Applicant consulted with counsel and elected to waive all other rights with the exception of the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

910829:	Commanding Officer, USS DURHAM recommended to Commander, Naval Military Personnel that SN G_ (Applicant) be discharged under honorable conditions (general) by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “I strongly recommend SN G_(Applicant) be discharged from the naval service under general conditions.  Due to members involvement with drugs a general discharge would best serve the interest of the Navy and the servicememember.”

910905:	CO’s NJP of 910613 disallowed.  The urinalysis used as evidence is considered unadmissible for judicial or non-judicial punishment per OPNAVINST 5350.4B, in which the sample should have been categorized as a command directed sample vice a sub unit sweep sample.  Per the provisions of OPNAVINST the non-judicial punishment awarded on 910613 is set aside.  All rights and privileges restored to member.

910909:	Applicant notified Commander, Bureau of Naval Personnel of his waiver of the right to submit a statement.

910911:	BUPERS directed the Applicant's discharge with type warranted by service record by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW
Discussion

The Applicant was discharged on 19910917 by reason of misconduct due to drug abuse (A) with a service characterization of under honorable conditions (general).  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 (B and C).  

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.  The Applicant’s service record documented two alcohol related incidents and cocaine use.  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.

Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service.  There are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis for administrative discharge and the characterization of a Sailor’s overall service.  Processing for separation 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.  The Applicant’s service prior to his drug use does not excuse him of responsibility for the misconduct that resulted in his discharge.  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 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.  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