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

ex-MSSN, USNR(TAR)
Docket No. ND00-00463

Applicant’s Request

The application for discharge review, received 000229, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance before a Traveling Panel closest to (left blank).  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) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329.  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 4 to 1 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 (verbatim)

1.  (Equity Issue) His violations of the UCMJ notwithstanding, the former member opines that his overall service record supports release under honorable conditions.

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:

Character reference dated July 21, 1999 (2 copies)
Character reference dated January 25, 2000 (2 copies)
Character reference dated January 10, 2000
Character reference dated January 10, 2000 (2 copies)
Character reference dated January 10, 2000 (2 copies)
Character reference dated January 10, 2000 (2 copies)
Character reference dated January 10, 2000 (2 copies)
Character reference dated January 10, 2000 (2 copies)
Certificate from Service School Command dated October 28, 1983
Letter from Director, Supply Service School
Copy of DD Form 214
Copy of Certificate of Appreciation
Copy of Letter of Appreciation dated July 29, 1986
Letter from Commanding Officer dated January 21, 1987
Copy of Letter of Appreciation dated January 25, 1987
Copy of certificate of appointment dated March 16, 1987
Back page of an evaluation from March 6, 1985 to March 15, 1985
Five memorandums dated May 1986 through February 1987
Copy of requirements for advancement to Mess Management Specialist Third Class
Copy of Utah Army Reserve Guard certificate dated September 9, 1999
Copy of photography and article on applicant
Copy of Utah National Guard certificate of appreciation for 7-11 June 1999
Copy of memorandum dated June 13, 1999
Copy of Creed of Noncommissioned Officer dated June 13, 1999
Copy of letter re: attaining the Eagle Scout Award dated July 6, 1983
Letter from Boys Scouts of America
Copy of Cub Scout Leader Basic Training Certificate dated February 20, 1993
Copy of Victor Valley College Admissions/Records for Fall 1991, Spring 1992
Copy of class schedule for Horizonte Instruction and Training Center dated April 8, 1999
Copy of certificate for completion of parent education course dated July 15, 1997 to September 9, 1997
Copy of certificate for completion of the parenting program dated December 14, 1995
Copy of diploma dated June 2, 1983
Copy of certificate of graduation dated May 22, 1983
Copy of certificate of excellence dated May 8, 1992
Certificate of training dated August 14, 1992
Copy of Advice of Personnel Action dated April 14, 1992
Copy letter of recognition and appreciation dated September 16, 1992 (2 copies)
Copy of letter of recognition dated September 16, 1992 (2 copies)
Letter of recommendation dated August 19, 1992 (2 copies)
Copy of inter-office memo dated August 10, 1992 (2 copies)
Copy of letter of recommendation dated August 25, 1992 (2 copies)
Copy of inter-office memo dated August 8, 1992 (2 copies)
Copy of letter of appreciation dated January 8, 1992 (2 copies)
Copy of inter-office memo dated August 10, 1992 (2 copies)
Copy of inter-office memo dated August 24, 1992 (2 copies)
Character reference, undated (2 copies)
Copy of inter-office memo dated January 1, 1992 (2 copies)
Copy of certificate of appreciation for the July 4, 1992 celebration
Copy of certificate of appreciation
Copy of birth certificate for applicant's son
Copy of birth certificate for applicant's daughter
Letter from applicant dated February 23, 2001 (update of events)
Letter from applicant dated January 10, 2000
Letter from applicant dated December 6, 1998
Copy of DA Form 4836, Oath of Extension of Enlistment or Reenlistment dated December 16, 2000
Copy of official letter of acceptance from University of Utah dated February 22, 2001 (2 pages)
Copy of college transcript
Copy of DA Form 2171, Request for tuition assistance - Army continuing education system dated January 4, 2001
Copy of notice of phase completion dated October 30, 2000
Copy of notice of enrollment and program requirements dated February 10, 2000
Copy of DA Form 638, Recommendation for Award dated August 11, 1999
Character/job reference dated June 29, 1998
Character reference dated July 17, 1999
Character reference dated August 4, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  830708		Date of Discharge:  870723

Length of Service (years, months, days):

	Active:    01  08  03
	Inactive:  02  04  15

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  26

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.37 (6)	Behavior:  3.50 (6)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

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 3630620.

Chronological Listing of Significant Service Events:

830708:	Applicant to initial active duty for training.

830709:	Applicant briefed on Navy's policy on drug and alcohol abuse.

831028:	Applicant released from active duty.

860315:	Applicant report for active duty for 48 months in the TAR program.

870330:	NAVDRUGLAB, Norfolk, VA reports urine sample received 870320 tested positive for THC.

870403:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: THC
	Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSN.  No indication of appeal in the record.

870515:	Applicant placed on mandatory urinalysis program for 180 days.

870619:	NAVDRUGLAB, Norfolk, VA reports urine sample received 870611 tested positive for THC.

870621:	Retention Warning:  Advised of deficiency (Identified as having been involved in one drug related incident (positive commander directed urine sample) prior to this date.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870701:	Medical evaluation for drug abuse found the applicant to be psychological dependent on marijuana.  

870701:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by 870430 nonjudicial punishment for wrongful use of a controlled substance and having been involved in a positive command directed urine sample on 870608.

870702:  	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.

870708:	Substance Abuse Report: Marijuana abuse, 1-3 times per month March-June 1987, ashore off duty.  Inspection urinalysis June 1987.  Medical officer found applicant not dependent and recommended separation not via VA hospital.  Commanding officer recommended separate.  Comments: Member is currently being processed for administrative discharge.  His attitude toward work and the Navy has steadily declined.  He continues to use illegal drugs despite counseling and disciplinary action.  He is not recommended for further naval service.

870709:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
 
870714:	CNMPC 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 870723 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 the applicant’s issue 1, the Board found that the applicant tested positive for THC on 2 separate occasions.  The applicant continued to use drugs despite counseling and disciplinary action.  It was noted that his attitude toward his work and the Navy steadily declined during this timeframe.  Unfortunately, this misconduct outweighed any positive contributions he made while in the Navy.  Based on this information, the Board denies relief.

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).  The Board requested additional information from the applicant on 010129 consisting of letters of reference concerning his employment from 1992-1998 and attendance/completion of substance abuse programs or 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.  The additional information the applicant forwarded did not address the Board’s request.  Therefore, in the applicant’s issue 2, the Board did not feel the applicant’s post service conduct was sufficient to warrant an upgrade to discharge.  No relief will be granted based on this issue.  The applicant is strongly 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.  Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective 
15 Dec 86 until 14 Jun 87, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

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