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

ex-BMSN(SW), USN
Docket No. ND99-00286

Applicant’s Request

The application for discharge review, received 981218, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000323.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Request discharge change to Honorable from Other than Honorable

2.  Request rate be changed from E-3 to E-5

Documentation

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

Copy of DD Form 214
Letter from Applicant
Character reference(2)
Employer reference from Arrowhead Alternators and Starters
NIS document
Separation evaluation

PART II - SUMMARY OF SERVICE

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

	Active:   USN			740731 - 770430	HON
		  USN			770501 - 831229	HON
		  USN			831230 - 900404	HON
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  900405		Date of Discharge:  940209

Length of Service (years, months, days):

	Active:    03  10  05
	Inactive:  None

Age at Entry:  32			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  BM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (6)	Behavior:  3.47 (6)		OTA:  3.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM w/1 Star, SSDR (5), GCM (4), NER, NEM, Letter of Commendation, NAM, AFEM (2)

Days of Unauthorized Absence:  2 

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:

930323:	Applicant to unauthorized absence 0730, 23Mar93.

930324:	Applicant apprehended by civil authorities 0830, 24Mar93.

930325:	Applicant from unauthorized absence 1800, 25Mar93 (2 days/surrendered).

930427:	Applicant admitted to Naval Alcohol Rehabilitation Center (NARC) for Level III treatment.

930520:	Applicant discharge from NARC.  Final diagnosis/comments: Alcohol dependence - relapse.  Applicant completed refresher rehabilitation for alcohol dependence.

930527:	Counseling: Advised of deficiency (performance, responsibilities, personal behavior), notified of corrective actions and assistance available.

930606:	Applicant directed to participate for one year in the aftercare program.

930630:	NAVDRUGLAB, Norfolk, VA reports urine sample received 930623 tested positive for cocaine.

930714:	Counseling: Advised of deficiency (alcohol), notified of corrective actions and assistance available.

930714:	Medical Department: A: alcoholism.

9307XX:	NAVDRUGLAB, Norfolk, VA reports urine sample received 930615 tested positive for cocaine.

930920:	Medical department: Impression: Alcoholism, substance abuse - cocaine.

930927:	NAVDRUGLAB, Norfolk, VA reports urine sample received 930917 tested positive for cocaine.

930928:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, commission of a serious offense, alcohol abuse rehabilitation failure as evidenced by your service record and by your alcohol and drug related incidents following completion of Level III rehabilitation treatment.

931005:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 16Sep93.
	Award:  Restriction for 45 days, reduction to BM2.  No indication of appeal in the record.

931005:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  Applicant did object to separation.

931006:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   

931025:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

931104:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), commission of a serious offense, alcohol abuse rehabilitation failure. 

931216:	CNO N1 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 940209 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In response to applicant’s issue 1, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  The applicant provided one letter of recommendation from his employer as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

In response to applicant’s issue 2, the NDRB cannot authorize rate changes.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, 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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  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.

D.  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.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, DC  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, DC  20374-5023