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

ex-QM3, USN
Docket No. ND00-00847

Applicant’s Request

The application for discharge review, received 000627, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010406.  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 (verbatim)

1.  I have recently been advised that I can upgrade my discharge to honorable.  I have matured as an adult mentally.  I'm married and currently supporting my 19-year-old son through college. I'm a trained control valve and safety value tech. in the city of Metuchen NJ.  I'm currently in the DOM at Lyons NJ to reinforce my recovery I will continue to live my life clean a sober.

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we believe the appellant has adequately set forth his contentions on application for an upgrade of the discharge from Under Other Than Honorable to Honorable.

The evidence of record reflects the FSM served from January 5, 1981 to January 4, 1985 with Honorable serve, it additionally notes continued service from January 5, 1985 to June 19, 1987, receiving a Under Other Than Honorable discharge due to misconduct - drug abuse.

The record reflects the above misconduct but it does not denote the availability to probation and rehabilitation.  This FSM had four (4) years of good Honorable service and should have been provide with the opportunity to rehabilitate and continue his military service in an honorable manner.  The absence of this opportunity brings this service to believe that there may have been some improprieties in the manner in which the case was handled by the FSM's Chain of Command, during that time period.

The FSM initiates this application denoting that he holds, maintains, and engages in solid employment with heavy responsibility, as a control valve and safety valve technician.  Further he notes, he is married and assisting his 19-year-old son through college and continues to keep his past vice in check with reinforced treatment, currently at the VA Medical Center in Lyons, New Jersey.

In light of the above findings we ask for equitable relief, requiring that this Naval Board grant an upgrade of the FSM's discharge from Under Other than Honorable to General Under Honorable conditions.

We ask the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			810105 - 850104	HON
	Inactive: USNR (DEP)	800815 - 810104	COG

Period of Service Under Review:

Date of Enlistment:  850105		Date of Discharge:  870619

Length of Service (years, months, days):

	Active:    02  05  15
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  25

Highest Rate:  QM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)	Behavior:  3.15 (4)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  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:

870109:	NJP for violation of UCMJ, Article 112A: Wrongful use of a schedule I controlled substance, to wit: marijuana on 12Nov86.
	Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to QM3.  No indication of appeal in the record.

870416:	NJP for violation of UCMJ, Article 112A; Wrongful use of cocaine on 16Mar87.
	Award: Forfeiture of $509 per month for 2 months, restriction and extra duty for 45 days, reduction to QMSN.  Reduction suspended for 6 months.  No indication of appeal in the record.

870423:	Substance Abuse Report:  Applicant found not drug dependent.  [Extracted from CO's message dated 22May87.]

870424:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your illegal or wrongful use of marijuana.  A schedule I controlled substance, resulting in your commanding officer's nonjudicial punishment on 9Jan87 and your illegal or wrongful use of cocaine, a schedule II controlled substance, resulting in commanding officer's nonjudicial punishment on 16Apr87.  [Extracted from CO's message dated 22May87.]

870424:	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.  [Extracted from CO's message dated 22May87.]

870501:	Drug and Alcohol Abuse Report: Marijuana abuse ashore off duty.  Random urinalysis on 870109.  Commanding officer recommended retention and Level I treatment.  Comments: Above average both professionally and militarily.  Exhibits good potential for future naval service.  Punishment include NJP 45 days rest/extra duty; FF 1/2 ppm x 2 mos; RIR.  No civil arrests.

870507:	Drug and Alcohol Abuse Report: Cocaine abuse ashore off duty.  Unit sweep urinalysis on 870316.  CAAC found applicant dependent and recommend separate via VA hospital.  Physician found applicant dependent.  Commanding officer recommended separate not via VA hospital.  Comments: Below standard both professionally and militarily.  Exhibits no potential for future naval service.  Punishment include NJP 45 days rest/extra duties; FF 1/2 ppm x 2 mos.  No civil arrests.

870522:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

870608:	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 870619 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’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

In response to the applicant’s issue 2, it is the Commanding Officer’s prerogative to decide if rehabilitation for a service member is in the best interest of the command and whether or not to process an individual for administrative separation.  The Board disagrees with the statement that “there may have been some improprieties in the manner in which the case was handled by the FSM’s Chain of Command.”  The applicant and counsel have offered no evidence to prove that improprieties existed, nor did the Board find any.  The Board did find that the Commanding Officer provided an opportunity to the applicant by recommending retention for the service member after his marijuana incident.  The CO specifically recommended Level I treatment and retention, as noted in the Drug and Alcohol Abuse report of 870501.  It was in the applicant’s final Drug and Alcohol Abuse report dtd 870507 that the CO recommended separation due to the applicant’s positive urinalysis of cocaine on 870316.  Relief is denied based on this issue. 

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).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and 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.

  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  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.

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