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

ex-ABFAN, USNR
Docket No. ND00-01058

Applicant’s Request

The application for discharge review, received 000915, 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 010301.  After a thorough review of the records, 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was base on one isolated incident in 28 months of service with no other adverse action.  Originally I enlisted for three years which I served instead of re-enlisting I extend for year which I successfully completed and during that year I made first incrament on the exams for third class petty officer & 4.0 evaluation as a sailor.  Up to this point I've made a WEST-PAC, a world cruise, numerous work-ups.  At first, extention instead of re-enlisting I requested another extention and a transfer to the USS FORRESTAL from the USS ENTERPRISE, whiel on the FORRESTAL we were back up for Dessert Storm provide comfort. I did Mediterinean cruise also.  Then I requested another tranfer to San Diego California to the USS TRIPOLI.  I had to sign up for another 1 yr extention.  At this command I arrived as third-class petty officer with 4.0 evals.  Here I was been told that I shouldn't be a petty officer by the leading P.O. and he didn't think I possed and ability to be a leader, I was very dischourage of the whole ordeal.  Then I involved in a controlled substance to keep going mentally, physically, disturb instead seeking help!  A departmental drug sweep was order.  I came back positive.  Without any consoling.  I put out the Navy with no benefits I don't think this is fair to me or my family.  I appologize for any actions I partook in, so I'm asking for a upgrade of my discharge. To Honorable!  I really need to continue my education and all benifits that come with it.  I would like another chance to serve my country!

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:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  870730		Date of Discharge:  921102

Length of Service (years, months, days):

	Active:    04  09  20
	Inactive:  00  05  14

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  31

Highest Rate:  ABF3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (6)	Behavior:  3.27 (6)		OTA:  3.43

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM (2), SSDR, JMU

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880113:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

890727:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from appointed place of duty from 0645-1045, 16Jul89, (2) Absent from appointed place of duty from 0645-1200, 19Jul89, violation of UCMJ, Article 92 (2 specs): Fail to obey a lawful order on 19Jul89, violation of UCMJ, Article 112A: Wrongful use of cocaine on 7Apr89, violation of UCMJ, Article 113: Sleeping while on watch on 24Jun89.
	Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 30 days, reduction to ABFAR.  Reduction suspended for 6 months.  No indication of appeal in the record.

890727:	Retention Warning from USS ENTERPRISE (CVN-65):  Advised of deficiency (Violation of UCMJ, Articles 112A, 113, 86, and 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
890814:	Drug and Alcohol Abuse Report:  Cocaine abuse, 4 to 7 times per week, ashore off duty.  Unit sweep urinalysis 890407.  Commanding officer recommended retention and Level III treatment.  Comments: SNM has potential for future naval service, will attend Level II onboard USS ENTERPRISE in the interim.

900203:	NJP for violation of UCMJ, Article 117: Wrongful use of provoking gestures on 2Feb90, violation of UCMJ, Article 128: Assault on 2Feb90.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

920902:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample received 920827, tested positive for amphetamine/methamphetamine.

920904:	NJP for violation of UCMJ, Article 112A: Wrongful use of methamphetamine on 13Aug92.
	Award:  Forfeiture of $522 per month for 2 months, restriction and extra duty for 45 days, reduction to ABFAN.  No indication of appeal in the record.

920930:	Drug and Alcohol Screen:  Applicant found to be alcohol/drug abuser.

920930:	USS TRIPOLI (LPH 10) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, a pattern of misconduct  and commission of a serious offense.

920930:  	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.

921001:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, a pattern of misconduct and commission of a serious offense. 

921201:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 921102 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In 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.

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 (E).  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 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.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112a, for wrongful use of methamphetamine, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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