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

ex-ETSN, USN
Docket No. ND00-01006

Applicant’s Request

The application for discharge review, received 000829, 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 designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.  In the acknowledgement letter the applicant was informed that he was approaching 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  Applicant did not respond.

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.  My discharge was inequitable because it was based on one isolated incident in 28 months of service with NO OTHER ADVERSE ACTION.

2.  Since my separation from service, I have sent myself through treatment - this was not provided while in service.  I have been employed as a border patrol agent for the last 4½ years.   Thank you in advance for your consideration.

Submitted by VFW:
This office, acting as counsel, has reviewed the naval record of the above named applicant and respectfully submits them for consideration in accordance with the application for review of his naval record.  We ask in accordance with Department of Defense Directive Number 1332.28 E4.3 EQUITY.  In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in this subparagraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:  E4.3.3.1 Quality of service, as evidenced by factors such as: E4.3.3.1.2 Records of nonjudicial punishment.

Documentation

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

Applicant's Notification of Personnel Action dtd 01/02/00 confirming Employment as a Border Patrol Agent, Dept of Justice
Enlisted Performance Evaluation Report for period 84DEC01 - 85JUN30 only
Letter of Appreciation, USS HECTOR (AR-7) dtd 17 Jul 1986

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	820817 - 830524	COG

Period of Service Under Review:

Date of Enlistment:  830525		Date of Discharge:  860812

Length of Service (years, months, days):

	Active:    03  02  18
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  (Test scores available, but no AFQT)

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.93 (3)	Behavior:  2.0 (3)		OTA:  2.53

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:

830726:	CO, RTC, San Diego, CA advised COMNAVMILPERSCOM of applicant's fraudulent enlistment due to failure to disclose complete police history, but recommended retention.

830804:	COMNAVMILPERSCOM acknowledged the fraudulent enlistment and subsequent retention.  Advised command to ensure applicant is given a retention warning.

831024:	Substance Abuse Report:  Abuse for Ethyl alcohol, less than monthly, determination made by NASAP/NDSAP, not dependent, amenability to counseling/education/rehab, recommend Level I (local command program), civilian authorities (09/83), commanding officer retained on board and referred to NASAP/NDSAP, Level I, first incident, warning not made, documentation not made.  Municipal Court awarded $596.00 fine, 90 days license restriction and ordered to attend NASAP 

860618:	Substance Abuse Report:  Possession/use amphetamines (1-3 times per months), determine by SAC, is dependent, amenability to counseling/eduction/rehab, recommend separated from service (not via VA hospital), military police (5/86), exhibits no potential for future naval service, NJP's and punishment, 86JUN20, violation UCMJ Article 112A - wrongful introduction of a controlled substance.  Civilian arrest - none.  Processing for ADSEP.

860620:	NJP for violation of UCMJ, Article 112A:  wrongful introduction of controlled substance.
Award:  Forfeiture of $408 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

860716:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your wrongful use of a controlled substance to wit: Amphetamines.

860716:	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.

860716:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding officer’s comments (verbatim):  "Based on the information contained above, it is recommended that ETSN (Applicant) be separated with an other than honorable conditions discharge due to frequent drug involvement.  Due to his continued use of amphetamines and total disregard for his personal and subsequent military responsibilities, his retention would not be in the best interest of the Navy.  In an effort to assist ETSN (Applicant), he was counseled by the Executive Officer on numerous occasions as well as members of his chain of command concerning documented drug abuse and overall poor military conduct.  He has failed to make any effort to rehabilitate.  His failure to act responsibly towards himself and shipmates far outweighs any advantage of his retention and jeopardizes the safety of my crew.  He was apprehended bringing a dealer amount of amphetamines aboard prior to a recent extended underway period and he has continued to use drugs despite all efforts to help him.  It is therefore recommended that he be administratively separated from the Naval Service by reason of frequent drug involvement.  ……..Subject named member does not require medical treatment and/or rehabilitation for drug abuse."

860808:	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 860812 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 response to applicant’s issue 1, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident".  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 response to applicant’s issue 2 and the statement submitted by the applicant’s counsel, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  However, 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.  No such error or injustice is evident in the applicant’s service record.  The applicant’s post-service documentation, which consisted only of confirmation as a Border Patrol Agent, is not sufficient enough to mitigate the seriousness of the applicant’s misconduct.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective 
16 Dec 85 until 05 Oct 86, 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