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



ex-AKAA, USN
Docket No. ND04-00369

Applicant’s Request

The application for discharge review was received on 20031229. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040910. 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, authority: NAVMILPERSMAN, Article 3630620.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

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

Copy of DD Form 214 (Service 2)

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     900628 - 910620  ELS (Failed to graduate)
         Active: USN                        None

Period of Service Under Review :

Date of Enlistment: 920414                Date of Discharge: 941104

Length of Service (years, months, days):

         Active: 02 06 21
         Inactive: None

Age at Entry: 18                          Years Contracted: Unknown*

Education Level: 11                        AFQT: Unknown

Highest Rate: AKAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NMF**                Behavior: NMF             OTA: NMF

Military Decorations: None

Unit/Campaign/Service Awards: NDSM, NER, SASM W/BRONZE STAR, AFEM, SSDR

Days of Unauthorized Absence: None

*Enlistment contract not in service record. Extracted from the DD Form 214

**No marks found in Applicant’s service record

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

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




Chronological Listing of Significant Service Events :

940225:  Medical Department, USS ABRAHAM LINCOLN (CVN-72): 20 year old escorted to medical by MAA at 0100 on 940226. MA states patient returned to ship and upon entering the quarter deck did not speak and was walking strangely. So MAA escorted Pt to medical to see if any problems may arise if Pt is left alone. Pt uncooperative, refuses to speak to anyone, stairs blankly into space.
         PR&RR- WNL [sic] appears lethargic, uncooperative for rest of us, skin warm, color appears to be a tinge color, gait [sic], appears to be under the influence of alcohol/drugs [sic] of urine. Condition appears stable, no noted deterioration to observation.
         Assessment: Psychiatric Fugue &/or under the influence alcohol/drugs.
         Plan: MAA escort to Naval Hospital Oakland Emergency room/notified.

940226:  Naval Hospital Oakland, CA: Admitted from Emergency room after he was found uncommunicative and passively uncommunicative on the ship and in the emergency room. By the next day he would talk and state he had been angry in recent weeks about work issues.
Discharge diagnosis: Adjustment Disorder with mixed emotional features, Avoidant Personality traits.
Discharge Condition: Ambulatory, not a danger to self or others. Recommendation: Needs to follow up with appointments in the mental health department on 940309 at 1100 hrs.

940309:  Naval Hospital Oakland, Mental Health: Pt reports improvement in mood at work. Utilizing leisure time effectively. Sleeps 5-6 hours during work weeknights, more on the weekend.
         Assessment: Euthymic mood, congruent affects. No evidence of psychosis, disabling neurosis or organiuty.
         DIA: [sic] disorder, resolved. No further appointmnet scheduled.

941104:  Discharged with an under other than honorable conditions under the authority of MILPERSMAN 3630620 by reason of misconduct due to drug abuse.

Applicant’s discharge package missing from service record

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941104 under other than honorable conditions by reason of misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

The Applicant submitted no issues or documentation for this Board’s consideration. The Applicant’s DD-214 indicates he was discharged by reason of misconduct due to drug abuse. Separation under these conditions generally results in characterization of service under other than honorable conditions. The record contains no evidence, and the Applicant has submitted no evidence, to suggest that his discharge was improper or inequitable. Absent substantial, credible evidence to the contrary, the government enjoys its presumption of regularity in the conduct of its affairs. 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), 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C. 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.

D. 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.

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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

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BOARD MEMBERS RECORD OF VOTE


NAME                       CHARACTER OF SERVICE     REASON FOR DISCHARGE

T. B. GALVIN, COL, USMC                    NO CHANGE                          NO CHANGE
Presiding Officer

A. KOLKMEYER, LTCOL, USMC                 NO CHANGE                          NO CHANGE
Member

M. CUNNINGHAM, LT, USNR           NO CHANGE                          NO CHANGE
Member

J. ZWILLER, CAPT, USMC                     NO CHANGE                          NO CHANGE
Member

J. L. KOSKY, LT, JAGC, USNR               NO CHANGE                          NO CHANGE
Recorder



Recorder’s Signature:_____________________________________________


Presiding Officer’s Signature:_______________________________________

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A. Navy Military Personnel Manual, (NAVPERS 15560C, Change 9/94, effective 940722 - 961002) Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE, states:

1. A member must be mandatorily processed for separation by reason of misconduct due to drug abuse based upon one or more military offenses or civil convictions (including actions that amount to findings of guilt, i.e., admission or entry in pretrial intervention or similar programs with civilian authorities) for the following:

a. Drug Abuse. The illegal or wrongful use or possession of a controlled substance(s).

b. Drug Paraphernalia. All equipment, products, and materials that are used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the human body controlled substances in violation of the law.

c. Drug Trafficking. The sale, transfer, or possession with intent to sell or transfer, controlled substance(s).

2. Characterization of Service

a. Normally Other Than Honorable.

b. Type warranted by service record (Honorable or General) or Entry Level Separation under guidance in Article 3610300 when:

(1) separation processing is based solely on urinalysis test (fitness for duty, and certain service directed tests) results which, under OPNAVINST 5350.4 ( Appendix A to enclosure (4)) may not be used to characterize service as Other Than Honorable; or

(2) separation processing is based solely on drug abuse divulged through the Voluntary Self-Referral Program which may not be used to characterize service as Other Than Honorable except as outlined in OPNAVINST 5330.4.

3. Procedures

a. The Administrative Board Procedure (Article 3640200) shall be used. However, a commanding officer may process a member under the Notification Procedure (Article 3640200) when separation is based solely on one of the two reasons listed in subparagraph 2b(1) and 2b(2) of this article.

b. The Administrative Board Procedure (Article 3640200) shall be used for inactive duty reservists who test positive for drugs during inactive duty training. Inactive duty reservists recalled to active duty who test positive for drugs at recall sites shall also be processed using the Administrative Board Procedure.

c. Chief of Naval Personnel (CHNAVPERS) is separating authority, except when separation is based solely on one of the two reasons listed in subparagraphs 2b(1) and 2b(2) of this article. In such cases, officers exercising special court-martial convening authority (SPCMCA) are delegated authority (see Article 3610220) to separate members if the member does not object to the separation. In cases where member objects to separation, CHNAVPERS (Pers-83) is Separation Authority.

d. Forward the processed case by letter of transmittal or message to Pers-83. Ensure member's full name, rate and SSN have been indicated on each page of the case. In those cases where the commanding officer effects the separation, indicate date and characterization of service or description of separation awarded. Refer to Article 3640200.11 for message submission option in those cases where member waives an Administrative Board, the commanding officer does not have authority to effect separation or member objects to separation.

Note that if basis for offense of drug abuse is evidenced solely by a court-martial conviction and the SPCMCA has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement according to Article 3610260.7b.

OPTIONAL FINDING

X. NAVADMIN 140/96 (CNO WASHINGTON DC message 062350Z JUN 96), announced changes to the SECNAVINST 1910.4B (Subj: Enlisted Administrative Separations), effective 06 June 1996, and states in part:

1. REF A HAS BEEN SIGNED, CHANGING THE ADMINISTRATIVE SEPARATION (ADSEP) PROCESS FOR ENLISTED PERSONNEL. I WILL BE ISSUING A CHANGE TO CHAPTER 36 OF THE MILPERSMAN (MPM) TO IMPLEMENT THE NEW AUTHORITY GRANTED, ALONG WITH OTHER CHANGES TO HELP REDUCE OUR TRANSIENT POPULATIONS AND MAKE THE ADSEP PROCESS EASIER. IN THE MEANTIME, THIS MESSAGE ANNOUNCES AND AUTHORIZES IMMEDIATE CHANGES TO CURRENT PROCEDURES AND POLICIES. THIS NAVADMIN IS ORGANIZED AS FOLLOWS:

A.       PROCESSING PROCEDURES (PARA 2)
B.       SEPARATION AUTHORITIES (PARA 3)
C.       POLICY CHANGES (PARA 4)
D.       RECORDS KEEPING (PARA 5)

2.       PROCESSING PROCEDURES.

A. ALL COMMANDING OFFICERS AND THEIR SUPERIORS IN THE CHAIN OF COMMAND, ALONG WITH CERTAIN OFFICERS-IN-CHARGE (SPECIALLY DESIGNATED) ARE SPECIAL COURT-MARTIAL CONVENING AUTHORITIES (SPCMCA). SPCMCA'S ARE NOW AUTHORIZED TO DETERMINE WHICH SEPARATION PROCESSING PROCEDURES ARE APPROPRIATE IN A PARTICULAR CASE. THERE ARE TWO PROCESSING PROCEDURES: NOTIFICATION (NO ADMIN SEPARATION BOARD) AND ADMINISTRATIVE BOARD PROCEDURES. IF THE OFFENSE OR THE CIRCUMSTANCES SURROUNDING THE OFFENSE ARE SUCH THAT AN OTHER-THAN-HONORABLE (OTH) DISCHARGE IS NOT WARRANTED, THE SPCMCA IS AUTHORIZED TO USE NOTIFICATION PROCEDURES (MPM 3640200.5/6). IF AN INDIVIDUAL PROCESSED UNDER NOTIFICATION PROCEDURES IS SEPARATED, THE LEAST FAVORABLE CHARACTERIZATION OF DISCHARGE WILL BE A GENERAL DISCHARGE. THIS AUTHORITY IS LIMITED TO SEPARATION PROCESSING BASED ON MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE (MPM 3630600.lC/D), A PATTERN OF MISCONDUCT (MPM 3630600.lB), OR CIVIL CONVICTIONS (MPM 3630600.lE/F) BUT NOT INCLUDING THE TYPES OF MISCONDUCT OUTLINED IN PARA 2B BELOW; SECURITY (3630700); OR UNSATISFACTORY PARTICIPATION IN THE INDIVIDUAL READY RESERVE (IRR) (MPM 3630800). THIS PROCEDURAL CHANGE ELIMINATES THE NEED FOR CONDITIONAL WAIVERS PREVIOUSLY ADVERTISED IN NAVADMIN 121/96.

B. ADMIN BOARD PROCEDURES MUST STILL BE USED FOR ALL SEPARATION CASES INVOLVING MANDATORY PROCESSING. THESE ARE:

(1) HOMOSEXUAL CONDUCT - (MPM 3630400),
(2) MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE OR A CIVIL
CONVICTION (MPM 3630600) WHEN:

(A) MISCONDUCT RESULTS IN, OR HAS THE POTENTIAL TO RESULT IN DEATH OR SERIOUS BODILY INJURY;

(B) MISCONDUCT IS THE RESULT OF SEXUAL PERVERSION (LEWD AND LASCIVIOUS ACTS; SODOMY, INCLUDING FORCIBLE HETEROSEXUAL OR CHILD MOLESTATION; AND INDECENT ASSAULT, ACTS, OR EXPOSURE;

(C) ACTS AGAINST THE SECURITY OF THE NAVY OR THE NATION, INCLUDING VIOLATIONS OF UCMJ ART 94 (MUTINY AND SEDITION), 99 (MISBEHAVIOR BEFORE ENEMY), 100 (SUBORDINATE COMPELLING SURRENDER), 101 (IMPROPER USE OF COUNTERSIGN), 102 (FORCING SAFEGUARD), 104 (AIDING THE ENEMY), 106 (SPYING), 106A (ESPIONAGE), AND 113 (MISBEHAVIOR OF SENTINEL OR LOOKOUT IN TIME OF WAR); OR (D) SEXUAL HARASSMENT INVOLVING THREATS OR ATTEMPTS TO INFLUENCE ANOTHER'S CAREER OR JOB FOR SEXUAL FAVORS, REWARDS IN EXCHANGE FOR SEXUAL FAVORS, OR PHYSICAL CONTACT OF A SEXUAL NATURE WHICH COULD RESULT IN A PUNITIVE DISCHARGE IF PUNISHED UNDER THE UCMJ.

(3) MISCONDUCT DUE TO DRUG ABUSE (MPM 3630620).

3. SEPARATION AUTHORITIES (AUTHORITY SENIOR TO THOSE LISTED BELOW MAY ALSO SERVE AS SEPARATION AUTHORITY FOR THE REASONS LISTED):

A. SPCMCA'S ARE THE SEPARATION AUTHORITY WHEN MEMBERS ARE PROCESSED FOR SEPARATION BY REASON OF:

(1) OTHER DESIGNATED PHYSICAL OR MENTAL CONDITIONS (MPM 3620200).
(2) REVIEW ACTION (MPM 3620200).
(3) DEPENDENCY OR HARDSHIP (MPM 3620210).
(4) PARENTHOOD (MPM 3620215).
(5) PREGNANCY OR CHILDBIRTH (MPM 3620220).
(6) PERSONALITY DISORDER (MPM 3620225).
(7) SURVIVING FAMILY MEMBER (MPM 3620240).
(8) RESERVIST BECOMES A MINISTER (NEW REASON FOR ADSEP).
(9) WEIGHT CONTROL FAILURE (MPM 3620260).
(10) ENTRY LEVEL PERFORMANCE AND CONDUCT (MPM 3630200).
(11) DRUG ABUSE REHABILITATION FAILURE (MPM 3630500).
(12) ALCOHOL ABUSE REHABILITATION FAILURE (MPM 3630550).
(13) DEFECTIVE ENLISTMENTS AND INDUCTIONS - ERRONEOUS (MPM
3620280).
(14) DEFECTIVE ENLISTMENTS AND INDUCTIONS - MINORITY (MPM 3620285).
(15) DEFECTIVE ENLISTMENTS AND INDUCTIONS - DEFECTIVE ENLISTMENT AGREEMENTS (MPM 3620283).
(16) DEFECTIVE ENLISTMENTS AND INDUCTIONS - SEPARATION FROM DELAYED ENTRY PROGRAM (3630810).
(17) SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, ONLY WHEN THE REQUEST IS BASED SOLELY ON AN UNAUTHORIZED ABSENCE OF 30 DAYS OR MORE.

B. SPCMCA'S MAY ALSO SERVE AS SEPARATION AUTHORITY WHEN A MEMBER IS PROCESSED FOR SEPARATION FOR ONE OF THE REASONS LISTED IN PARA 3C BELOW, PROVIDED:

(A) NOTIFICATION PROCEDURES ARE USED, OR

(B) ADMINISTRATIVE BOARD PROCEDURES ARE USED AND THE
ADMINISTRATIVE BOARD RECOMMENDS SEPARATION WITH AN HONORABLE, GENERAL, OR ENTRY LEVEL SEPARATION.

C. GENERAL COURT-MARTIAL CONVENING AUTHORITIES (GCMCA'S) ARE THE SEPARATION AUTHORITY FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL (MPM 3630650) (EXCEPT FOR HOMOSEXUAL CONDUCT CASES, WHICH MUST BE FORWARDED TO CHNAVPERS, AND CASES IN WHICH THE SPCMCA SEPARATES PER PARA 3A(17) ABOVE). GCMCA'S ALSO SERVE AS SEPARATION AUTHORITY WHEN MEMBERS ARE PROCESSED FOR THE REASONS LISTED BELOW IF ADMINISTRATIVE BOARD PROCEDURES ARE USED AND THE BOARD RECOMMENDS AN OTH OR RETENTION, OR THE MEMBER WAIVES THE BOARD:

(1) DEFECTIVE ENLISTMENTS AND INDUCTIONS - FRAUDULENT ENTRY INTO THE NAVAL SERVICE (MPM 3630100).
(2) MISCONDUCT - PATTERN OF MISCONDUCT (MPM 3630600).
(3) MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE (MPM 3630600).
(4) MISCONDUCT - CIVILIAN CONVICTION (MPM 3630600).
(5) MISCONDUCT - DRUG ABUSE (MPM 3630620).
(6) UNSATISFACTORY PARTICIPATION IN THE READY RESERVE (MPM 3630800).

D. CHIEF OF NAVAL PERSONNEL (CHNAVPERS) IS THE SEPARATION
AUTHORITY WHEN MEMBERS ARE PROCESSED FOR SEPARATION BY REASON OF:

(1) EARLY RELEASE TO FURTHER EDUCATION (MPM 3620235).
(2) SELECTED CHANGES IN SERVICE OBLIGATIONS (GENERAL
DEMOBILIZATION OR REDUCTION IN AUTHORIZED STRENGTH) (MPM 3620100).
(3) SELECTED CHANGES IN SERVICE OBLIGATION (ACCEPTANCE OF AN
ACTIVE-DUTY COMMISSION OR APPOINTMENT, OR ACCEPTANCE INTO A PROGRAM LEADING TO SUCH A COMMISSION OR APPOINTMENT IN ANY BRANCH OF THE MILITARY SERVICE) (MPM 3620100).
(4) CONSCIENTIOUS OBJECTION (MPM 1860120).
(5) HOMOSEXUAL CONDUCT (MPM 3630400).
(6) ANY BASIS FOR SEPARATION WHEN THE SERVICEMEMBER HAS 18 YEARS OR MORE OF TOTAL ACTIVE FEDERAL MILITARY SERVICE (TAFMS).
(7) MISCONDUCT CASES WHEN THE SERVICEMEMBER HAS PHYSICAL EVALUATION BOARD (PEB) ACTION COMPLETED OR PENDING.
(8) FRAUDULENT ENLISTMENT WHEN THE PROCESSING COMMAND IS
RECOMMENDING A WAIVER OF PROCESSING AND RETENTION OF THE
SERVICEMEMBER.

E. THE SECRETARY OF THE NAVY IS THE SEPARATION AUTHORITY WHEN MEMBERS ARE PROCESSED BY REASON OF:

(1) BEST INTEREST OF THE SERVICE (BIOTS) (MPM 3630900).
(2) DISABILITY (MPM 3620270).
(3) ALL CASES INVOLVING RESERVISTS WITHIN 2 YEARS OF ELIGIBILITY FOR RETIRED OR RETAINER PAY.
(4) ALL CASES WHEN THE SOLE BASIS FOR PROCESSING IS AN SPCM/GCM CONVICTION THAT DID NOT INCLUDE A PUNITIVE DISCHARGE, AND
THE PROCESSING COMMAND RECOMMENDED AN OTH.
(5) ALL MISCONDUCT CASES BASED SOLELY ON CIVIL CONVICTION(S)
WHEN FINAL ACTION ON THE MEMBER'S APPEAL HAS NOT BEEN TAKEN (UNLESS THE SERVICEMEMBER REQUESTS SEPARATION BEFORE FINAL ACTION ON THE APPEAL).

4. POLICY CHANGES.

(A) THE REQUIREMENT FOR THE SENIOR MEMBER OF AN ADMIN BOARD TO BE AN ACTIVE DUTY LIST OFFICER IS DELETED. TAR AND STAFF CORPS OFFICERS ARE NOW PERMITTED TO SERVE AS SENIOR MEMBERS OF ADMIN BOARDS. THE REQUIREMENT THAT ONE MEMBER BE A LINE OFFICER SERVING IN PAYGRADE 04 OR ABOVE IS DELETED. HOWEVER, THE SENIOR MEMBER MUST STILL BE IN PAYGRADE 04 OR ABOVE.

(B) A PATTERN OF MISCONDUCT IS RECLASSIFIED AS TWO OR MORE NJP'S, COURTS-MARTIAL, OR CIVIL CONVICTIONS (OR COMBINATION THEREOF) WITHIN THE CURRENT ENLISTMENT (MPM 3630600.lB). A NAVPERS 1070/613 COUNSELING/WARNING IS STILL REQUIRED PER MPM 3610260.

(C) THE REQUIREMENT TO HAVE CHNAVPERS APPROVAL FOR TEMDU TRANSFERS IN CONNECTION WITH ADSEP AND/OR DISCIPLINARY ACTION IS DELETED. THE TRANSFERRING COMMAND, WITH ISIC APPROVAL, NEED ONLY OBTAIN THE GAINING COMMAND'S CONCURRENCE FOR THE TEMDU TRANSFER.

5. RECORD-KEEPING. ADSEP CASES WILL CONTINUE TO BE FORWARDED TO BUPERS AFTER THE SEPARATION AUTHORITY'S FINAL ACTION ON THE CASE FOR REVIEW AND FILING IN THE SERVICEMEMBER'S PERMANENT RECORD. A COPY OF THE SERVICEMEMBER'S DD-214 (RECORD OF DISCHARGE) SHOULD ACCOMPANY THE ADSEP PACKAGE IF THE SERVICEMEMBER WAS SEPARATED LOCALLY.