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

     

 ex-ICFR, USN
Docket No. ND99-01022

Applicant’s Request

The application for discharge review, received 990727, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the traveling panel closest to Ft Pierce, FL.  The applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000411.  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

1.  (EQUITY ISSUE) This former member avers that he has never used any illegal drugs and only falsely admitted to doing so after hours of interrogation.  He now regrets that error in judgement, he opines that upgrade of his characterization of service is warranted.

2.  (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214
Copy of certificate of Outstanding Physical Fitness dated May 13, 1993
Copy of certificate of Interior Communications Electrician Class "A" School dated May 28, 1993
Certificate of outstanding on the October 1993 Physical Readiness Test
Job/character reference dated August 23. 1999
Character reference dated August 24, 1999
Letter from applicant's wife dated August 24, 1999
Certificate from St. Lucie Catholic Church dated February 13, 1998
Copy of college transcript from Indian River Community College dated August 23, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920420 - 920921	ELS
		   USNR (DEP)	920928 - 921020	COG

Period of Service Under Review:

Date of Enlistment:  921021		Date of Discharge:  940314

Length of Service (years, months, days):

	Active:    01  04  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  80

Highest Rate:  ICFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.00

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, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

921021:	Applicant briefed on Navy's policy on drug and alcohol abuse.

921118:	Retention Warning: You are being retained in the naval service, in spite of your defective enlistment and induction due to fraudulent entry into the naval service as evidenced by your failure to disclose your preservice involvement with civil authorities and/or illegal drugs consisting of the following:  Speeding in Jun92.  Awarded $216.00 fine (paid). 

931230:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 12Nov93.
	Award:  Forfeiture of $407 per month for 2 month, restriction and extra duty for 30 days, reduction to ICFR.  Forfeiture of $407.00 for 1 month suspended for 6 months.  No indication of appeal in the record.

940112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your punishment under the UCMJ.

940121:	Medical evaluation for drug abuse found the applicant to be a mixed substance abuser.  Recommended Level II treatment.  

940121:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940127:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty, military police 931229.  Physician found applicant dependent and recommended separate not via VA hospital.  Commanding officer recommended separate not via VA hospital.

940208:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim):  Subject member appeared a Commanding Officer's nonjudicial punishment for wrongful use of marijuana.  Fireman recruit (applicant) was found guilty of marijuana use following an investigation and subsequent admission to drug use.  His lack of self-discipline undermines his integrity.  He is not in keeping with his enlistment oath and reflects discredit upon himself, this command, and the Navy.  Therefore, I am recommending that he be separated from the naval service with an Other Than Honorable discharge.

940302:	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 940314 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 applicant’s first issue states: “(EQUITY ISSUE) This former member avers that he has never used any illegal drugs and only falsely admitted to doing so after hours of interrogation.  He now regrets that error in judgement, he opines that upgrade of his characterization of service is warranted.”  The NDRB found no evidence in the record to support this issue.  Relief is not warranted.

The applicant’s second issue states:  “(EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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), 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, 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