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

 ex-MSSR, USN
Docket No. ND99-00868

Applicant’s Request

The application for discharge review, received 990610, requested that the characterization of service on the discharge be changed to 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I intentionally got caught with cocaine in order to get thrown out due to the fact that I had an ongoing conflict with my senior chief.  This can be seen by examining my performance record.  I received 4.0s up until the time of his arrival at which point my grades continued to decline.  He made the statement to me that we "would never get along as long as he was on the ship."  I had not been in any trouble prior to his arrival.  I had all intentions of making a career out of the military.  I realize, now, that I am a more mature individual, that I should not have allowed my emotions to overtake common sense.  I am now a responsible husband and father of three who has held the same job for the past 12 years.  I no longer use any illegal substances as I realize now what the consequences may be.

Documentation

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

Copy of DD Form 214
Twenty-eight pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	830211 - 831012	COG

Period of Service Under Review:

Date of Enlistment:  831013		Date of Discharge:  860613

Length of Service (years, months, days):

	Active:    02  08  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (4)	Behavior:  3.50 (4)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  46 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

831017:	Applicant briefed on Navy's policy on drug and alcohol abuse.

860423:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 0700, 5Mar86 to 0700, 28Mar86 (23 days/surrendered).
	Charge II: violation of the UCMJ, Article 87.
	Specification: Missing movement on 7Mar86.
	Charge III: violation of the UCMJ, Article 112A.
	Specification: Wrongfully used cocaine on 28Mar86.
	Finding:  to Charge I, II and III and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $425.00, confinement for 30 days, reduced to MSSR.
	CA action 860423: Sentence approved and ordered executed.

860512:	Drug and Alcohol Abuse Report: Cocaine abuse, Dec85-Mar86, ashore off duty, search seizure test Mar86.  CAAC found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended discharge.  Comments: No pre-service drug/ETOH related incidents, pre-service drug waiver not required.  Summary court martial 23 Apr 86 for viol UCMJ Art 86, 87, and 112A.  SNM's potential for future productive service considered poor.

860425:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

860425:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

860515:	Medical officer found no evidence of neurotic or psychotic disorder and no evidence of physiologic or psychologic addiction to drugs or alcohol.  Recommend discharge.

860517:	Applicant released from confinement and returned to full duty.

860523:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse. 

860528:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860613 under other than honorable conditions for misconduct due to commission of a serious offense (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 submit any supporting documentation that showed that his problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command.  If the applicant indeed did have a professional problem with his enlisted supervision, taking cocaine was not the answer.  Furthermore, 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.  Relief is therefore denied. 

Regarding the applicant’s post-service conduct, 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 did not provide any documentation of his post-service conduct, therefore relief is denied.  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.  Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective 
16 Dec 85 until 05 Oct 86),  Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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