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

ex-DCFN, USN
Docket No. ND00-00675

Applicant’s Request

The application for discharge review, received 000428, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed to administrative separation.  The applicant requested a personal appearance hearing discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 010322.  After a thorough review of the applicant’s service record, supporting documents presented to the NDRB, and in conjunction with consideration of the factors listed in SECNAVINST 5420.174c, the Board’s vote was 3 to upgrade the applicant’s discharge to Honorable and 2 to upgrade to Under Honorable conditions (General).  However, the Board voted unanimously that the reason for discharge shall remain the same.  The character of the applicant’s discharge shall change to:  HONORABLE/MISCONDUCT – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)  His violation of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

2.  (Equity Issue)  As the documentary evidence of record supports, this former ,member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorize under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Copy of DD Form 214 (2 copies)
Copy of police record check dated June 8, 1998 (2 copies)
Job reference dated April 22, 1998 (2 copies)
Character reference from Reverend of Otter Creek Baptist Church dated April 17, 1998 (2 copies)
Character reference from DCC (2 copies)
Copy of Enlisted Performance Record (2 copies)
Copy of administrative remarks dated January 5 and 6 1991
Job reference dated May 22, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	880825 - 890717	COG

Period of Service Under Review:

Date of Enlistment:  890718		Date of Discharge:  920828

Length of Service (years, months, days):

	Active:    03  01  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  DC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.76 (5)	Behavior:  3.40 (5)		OTA:  3.64

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC with 1 Star, KLM, NDSM, SASM with 2 Stars, SSDR

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:

890719:	Applicant briefed on Navy's policy on drug and alcohol abuse.

920723:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance in July 1992.
	Award:  Forfeiture of $501.90 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFN.  No indication of appeal in the record.

920807:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse as evidenced by nonjudicial punishment.

920807:  	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.

920808:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  DAPA evaluation of dependency unknown/undetermined and recommended separate from service not via VA hospital.  Physician found applicant not dependent.  Commanding officer recommend separate not via VA hospital.

920809:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Commission of a serious offense and Drug abuse (Use). 

920821:	BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).

990419:	NDRB documentary record review Docket Number ND98-01031 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920828 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 applicant’s service record, other supporting documents presented to the NDRB, and in consideration of the factors listed in SECNAVINST 5420.174c, the Board determined relief is warranted under equitable grounds (C and D).  The Board determined the characterization of discharge shall change to Honorable but there was insufficient justification to change the reason.  Therefore, the reason for discharge shall remain Drug abuse (Use).

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 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