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

 ex-RMSA, USN
Docket No. ND00-01081

Applicant’s Request

The application for discharge review, received 000926, 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 listed representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010313.  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.  Gentlemen,

I desire an upgrade in my discharge for reasons that are important to my life.

Since being discharged, I have made every attempt to be a good upstanding citizen making contributions to my community and being gainfully employed.

However, at this stage as I plan career and try to explain my military experience to my children, my other than honorable discharge presents difficults.

Accordingly, please consider me a veteran who has and continues to be a good person and worthy of an upgrade.

Personal and professional references are available.

Documentation

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

Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	831221 - 840723	COG

Period of Service Under Review:

Date of Enlistment:  840724		Date of Discharge:  871028

Length of Service (years, months, days):

	Active:    03  03  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)	Behavior:  3.40 (5)		OTA:  3.40

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:

830725:	Applicant briefed on Navy's policy on drug and alcohol abuse.

8701??:	Drug and Alcohol Abuse Report:  Marijuana abuse, less than monthly, ashore off duty January 1987. SAC found applicant not dependent.  Unit sweep.  Commanding officer recommended retention.

870130:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 5Jan87.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSA.  No indication of appeal in the record.

870130:	Retention Warning:  Advised of deficiency (Wrongful use of marijuana.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870810:	Drug Abuse/ETOH medical evaluation:  Voluntary disclosure.  Applicant found to be a drug abuser.  Recommended Level III treatment.

870831:	NAVDRUGLAB, Oakland, CA reports applicant's urine received 870817, tested positive for THC

870923:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

870923:  	Applicant advised of his rights and having consulted 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.

870923:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim): SNM tested positive for THC in a random urinalysis on 5Jan87.  SNM was given a P. 13 warning on 30Jan87 and was put on a 2 by 2 urinalysis program through April 87.  However, when terminated from the 2 by 2 program SNM began to abuse marijuana again.  SNM violated trust placed in him for access to sensitive material as a radioman.  SNM has shown a flagrant disregard of the U.S. Navy's drug abuse policy which reflects his unwillingness to conform to naval rules and regulations.  As a second time offender of the Navy's zero tolerance drug policy SNM does not qualify for retention.  However SNM is recommended for VA treatment after discharge per Med officer's level III treatment recommendation.  As a deployed unit retention of SNM will cause serious administrative and disciplinary problems for this command.  Owing to the seriousness of his offenses SNM is recommended for discharge under other than honorable conditions....

871005:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

871010:	Applicant accepted VA treatment.

871026:	Applicant declined in-patient VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 871028 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 had a positive urinalysis for THC on 2 separate occasions, which he knew to be in violation of the UCMJ.  Although the applicant may feel he is a “good person” and “worthy of an upgrade,” his actions while in the service make him deserving of an other than honorable discharge.  No relief will be granted 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 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.  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