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

 ex-STSSN, USN
Docket No. ND99-00431

Applicant’s Request

The application for discharge review, received 990208, requested that the characterization of service on the discharge be changed to honorable.  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 000121.  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 – Drug abuse (use), authority:  NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.	I was denied my rights to an administrative board.  As such the least favorable characterization of my discharge should be honorable.
2.	Bupers did not receive the positive endorsements from my command.  As such my record was incomplete when reviewed by the separation authority.
3.	I can't get the medical treatment I need for the injuries I received while on active duty.
4.	I am unable to get sufficient job needed to run my household.
5.	I am unable to get a house due to me not being eligible for the home loan certificate from VA.
6.	I am unable to get a newer car for a high risk factor.
7.	It's very difficult getting into school due to me not being eligible for my Navy College Fund to compensate for the expense.
8.	My discharge was inequitable because it was based on one isolated incident with no adverse action.   

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 (2pgs)
Letters from LT M___ A. J____ Naval Legal Service Office (2)
Copy of Pretrial Agreement (5pgs)
Letter from LT. M___ A. J____ Naval Legal Service Office
Copy of Abbreviated Limited Duty Medical Board Report
Letters of Recommendation (2)
Copy of Notification of Rights (3pgs)
Copy of Bupers Message
Letter of Commendation
Letters of Appreciation (3)
Copy of Outstanding Performance Citation
Petty Officer Third Class Authority Letter
Incident/Injury Report (2pgs)
Thank you letter from Government Counsel

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive:  USNR (DEP)	950331 - 950531	COG

Period of Service Under Review:

Date of Enlistment:  950601		Date of Discharge:  980428

Length of Service (years, months, days):

	Active:    02  10  28
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rate:  STG3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug abuse(use), authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980211:	Pre-Trial agreement indicates in an Special Court-Martial, after consulting with counsel, applicant agreed to enter a voluntary plea of guilty to the charge of violation of UCMJ, Article 112a, wrongful use of marijuana, providing that the charge and specification brought against him are withdrawn from a Special Court-Martial and that the same charge and specification is referred to an Article 15, Non-Judicial Punishment proceeding. 

980226:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
	Award:  Forfeiture of $554 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record 

980303:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO's NJP on 26 February 1998 as documented in service record {Member refused to sign, extracted from case file}.

980303:  	Applicant advised of his rights {Member refused to sign, extracted from case file}.

980310:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

980316:	BUPERS 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 980428 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 Board found that the applicant’s pre-trial agreement became null and void when the applicant pleaded “not guilty” at Captain’s Mast.  The applicant could have refused NJP at that point but did not.  According to OPNAVINST 5350.4B, administrative board procedures are not required for cases involving service directed urinalysis.  The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 2, the applicant’s positive endorsements from his previous command would have had no impact on the separation authority’s decision involving a drug abuse case.

In response to applicant’s issues 3 – 7, the Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility.  There is no requirement or law that grants recharacterization based solely on the issue of obtaining veteran's benefits.  Also, the Board has no obligation to change the applicant's discharge in order to allow him to go back to school or to obtain better employment.

In response to applicant’s issue 8, the applicant implies that a permissive doctrine exists whereby one in the military is allowed "one isolated incident".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  Relief denied.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant 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. 

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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, D.C.  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, D.C.  20374-5023