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

ex-AMHAA, USN
Docket No. ND00-00919

Applicant’s Request

The application for discharge review, received 000718, requested that the characterization of service on the discharge be changed to honorable.  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 010201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity, but no impropriety in the characterization of the applicant’s service.  The Board voted 4 to 1 to upgrade the characterization of the discharge to:  UNDER HONORABLE CONDITIONS (GENERAL)/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I contend that I was very immature while in service.  I was easily influenced by my peers.  I was married to a drug user whom I have subsequently divorced.  My THC use was my only military shortcoming.  I was not afforded any chance of rehabilitation after I was caught using THC.

2.  I am clean & sober today.  I am a model student  & positive influence in the community today.

3.  My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

4.  I had service.  Hazard duty (Flight Deck) pay & service

5.  My record of promotions showed I was generally a good service member.

6.  I have been a good citizen since 1994.

7.  My record of NJPs/Article 15s indicates only isolated or minor offenses.

8.  My record of convictions by civil authorities while I was in service indicates only minor or isolated offenses.

9.  My ability to serve was impaired by my youth and immaturity.

10  Personal problems impaired my ability to serve.

11.  My use of drugs impaired my ability to serve.

12.  My use of alcohol impaired my ability to serve.

13.  I tried to serve and wanted to, but just couldn't or wasn't able to.

Documentation

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

Letter to applicant re: student scholarship dated May 1, 2000
Certificate from Golden Key National Honor Society dated 1997
Letter from Montana State University re award of $1,050.00 scholarship dated May 5, 1997
Letter from Montana State University re award of $1,000.00 scholarship dated May 6, 1996
Letter from Montana State University re award of $750.00 scholarship dated September 18, 1995
Character reference dated March 9, 2000
Character reference dated February 28, 2000
Copy of Montana State University transcript issued February 16, 2000
Character reference
Character reference dated April 16, 2000
Copy of certificate of appreciation
Copy of Associate Recruiter Certificate
Copy of certificate for F-14 airframes and hydraulics organizational maintenance course dated July 24, 1987
Copy of certificate for aviation structural mechanic H (Hydraulics) course, Class Al dated May 15, 1987
Copy of certificate for F14 plane captain (D-600-1603) dated September 18, 1987
Copy of certificate for F14 airframes/hydraulic system maintenance (D-602-1682) dated August 14, 1987
Copy of certificate of award dated August 29, 1991
Character reference
Character reference dated March 30, 2000
Character reference dated July 2, 2000
Copy of NDRB response form dated February 7, 1990
Copy of applicant's request to close previous case without further action dated April 24, 1990
Copy of NDRB letter closing previous case without further action dated May 17, 1990
Copy of certificate dated April 17, 1997
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	860730 - 861228	COG

Period of Service Under Review:

Date of Enlistment:  861229		Date of Discharge:  880621

Length of Service (years, months, days):

	Active:    01  05  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  77

Highest Rate:  AMHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.40 (2)	Behavior:  2.86 (3)		OTA:  3.20

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:

880521:	NJP for violation of UCMJ, Article 112A: Wrongfully use a scheduled I controlled substance, to wit: marijuana on 25Apr88.
	Award: Forfeiture of $376 per month for 2 months, extra duty for 45 days, reduction to AMHAA.  No indication of appeal in the record.

880526:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   

880521:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment awarded 21 May 1988.

880515:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

880528:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

880603:	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 880621 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, and in conjunction with the factors listed in paragraph 9.3 of reference (a), it was determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Taking into account the applicant’s post service conduct, the Board voted to grant partial relief to the applicant upgrading the characterization to under honorable conditions (general).

The applicant’s issues 1 and 9 have to do with the applicant’s immaturity.  The applicant states in issue 1 that “I contend that I was very immature while in service.  I was easily influenced by my peers.  I was married to a drug user whom I have subsequently divorced.  My THC use was my only military shortcoming.  I was not afforded any chance of rehabilitation after I was caught using THC.”  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.  No relief granted based on this issue.

In response to the applicant’s issues 2 and 6, the Board voted to grant partial relief to the applicant, taking into consideration his post service accomplishments.  For clarification, 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.  The applicant provided numerous letters in support of his good character and conduct since his discharge in 1988.  An applicant’s post service conduct provides the Board with a basis for a more thorough understanding of the applicant’s performance and conduct during his period of service.  The Board therefore felt partial relief was warranted weighing the applicant’s misconduct due to drug abuse and his post service accomplishments.  The applicant is reminded that he is eligible for a personal appearance hearing if full relief is desired.  The application must be received within 15-years from the date of discharge.

The applicant states in issue 3 that his “average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].”  The applicant received performance behavior marks of 2.4 and 2.86 respectively.  The Board considers these marks below average, and therefore will not grant relief on the basis of this issue.

The applicant’s issue 4 is a non-decisional issue for the Board.

In response to the applicant’s issue 5, the Board found the applicant’s misconduct outweighed the positive aspects of his service time of one year and 5 months.  No relief granted.

In the applicant’s issues 7 and 8, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

In the applicant’s issue 10, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command.  In fact, the Board found that the applicant’s age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment.  The Board will not grant relief on the basis of this issue.

In the applicant’s issues 11 and 12, the Board does not accept alcohol/drug abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct.  While the Board recognizes that alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions.  They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.  Relief is not warranted based on this issue .

The applicant states in issue 13 that “I tried to serve and wanted to, but just couldn't or wasn't able to.”  The Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members.  Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country.  It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges.  The applicant’s service was accurately characterized when he was discharged as having been performed under other than honorable conditions.  Relief is not warranted based on this issue.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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