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

 ex-JON, USN
Docket No. ND99-00639

Applicant’s Request

The application for discharge review, received 990407, 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 000110.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.	Reconsideration of recommendation from JAG Officer.

2.	My other than honorable discharge was inequitable because it was based on one isolated incident in 46 months with no other adverse action.

3.	Please reconsider my character of discharge so I may continue my education with the Montgomery GI Bill and possibly join a Guard or Reserve Unit.

Documentation

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

Copy of DD Form 214
	Notice of an Administrative Brd. Procedure proposed action
	Administrative Brd. Proceedings
	Request for Clemency
	Letter of Deficiency
	Written statement on my own behalf
	Characterization Statements
	Aftercare Treatment

PART II - SUMMARY OF SERVICE

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

	Active:   USN			NONE
	Inactive: USNR (DEP)	880616 - 880808	COG

Period of Service Under Review:

Date of Enlistment:  880808			Date of Discharge:  920703

Length of Service (years, months, days):

	Active:    03 10 26
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  71

Highest Rate:  JO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.84 (5)	Behavior:  3.84 (5)		OTA:  3.84 (4.0 scale)

Military Decorations: NAM

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM(W/ bronze star) 

Days of Unauthorized Absence:  05

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:
920129:	Applicant UA from USS NIMITZ.

920202:	Applicant surrendered.

920224:	NAVDRUGLAB report:  applicant positive for cocaine.

920225:	NJP for violation of UCMJ, Article 86:  UA from NIMITZ from 0700, 92Jan29 to 1500, 92 Feb 02, violation of UCMJ Article 112a:  wrongfully used cocaine on or about 92Feb02.
	Award:  Forfeiture of $501 per month for 2 month(s), restriction and extra duty for 60 days, reduction to E-3.  No indication of appeal in the record.

920225:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.  Recommends Level II or Level III treatment.

920225:	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 920225.

920225:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920424:	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.

920519:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920616:	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 920703 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).

The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby.  Regarding clemency, the Board noted no evidence or mitigating factors warranting an upgrade of the applicant’s discharge.  It is the Board’s opinion that the discharge was equitable in its characterization.  Relief is therefore denied. 

In the applicant’s second issue, he implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  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.  The Board will not grant  relief on the basis of this issue.

Applicant was briefed on Veterans' Educational Assistance Act of 1984 (G.I. Bill).  He was specifically briefed that an honorable discharge after completion of 36 months of active duty would be required for entitlement to benefits under the G.I. Bill.  DD Form 2366.  Furthermore, the Board has no obligation to change the applicant’s discharge in order to allow him to go back to school.  

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 5420.174C 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