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

ex-ENFN, USN 
Docket No. ND01-00043

Applicant’s Request

The application for discharge review, received 001013, requested that the characterization of service on the discharge be changed to Honorable or General/under Honorable conditions.  The applicant requested a documentary record discharge review.  The applicant designated civilian counsel as his 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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was in the Navy 11 years and 9 months; while enlisted I received the Battle "E" Ribbon, Sea Serv ice Deployment ribbons, and 3 Good Conduct Medals.  I loved being in the navy and I did well while I was enlisted, until the death of my father in 1994.  After my father's death, I became very concerned for my mother who was left alone after my father died.  I am an only child and felt responsible for my mother's well being. I became stressed due to the problems that occurred and one evening while I was in the company of a friend, I revealed my problems and he provided me with some cocaine.  Without thinking of the fact that I was in the Navy, I took it.  I was so overwhelmed with grief and sadness I wanted to forget for just a while how much I missed my father and how worried I was about my mother. I realize that my actions were due to my belief that I was the head of my family and I had let my mother down.  I know I handled the situation wrong.  I chose to get out of the Navy and live with my mistake.  I know I hurt a lot of people by what I had done.  Many of my shipmates counted on me and I felt I let them down and for this I am extremely sorry.
Since my discharge I have not incurred any violation of the law and I have worked on J_ A_ as a machinery/operator at the power plant for the past 4 years. I plead with the Navy counsel of the Personnel Board to forgive me and to request an upgrade in my discharge, for the job I performed while on active duty, my awards and merits should speak for whim I really am and for whom I was while employed by a the U.S. Navy.

Documentation

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

Law Office of S_ H. C_ ltr of Oct 4, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   USN			890515 - 920713	HON
					840917 - 890514	HON
					800917 - 840916	HON
	Inactive: USNR (DEP)	800829 - 800916	COG

Period of Service Under Review:

Date of Enlistment:  920714		Date of Discharge:  950829

Length of Service (years, months, days):

	Active:    03  01  16
	Inactive:  None

Age at Entry:  33			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  EN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.65 (4)	Behavior:  3.2 (4)		OTA:  3.6

Military Decorations:  None

Unit/Campaign/Service Awards:  Battle "E" Ribbon (2), SSDR (3), GCM, NDSM

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

940824:	Letter of Substandard Service issued to applicant by BUPERS and applicant was placed on the Petty Officer control Review Board for performance improvement.  Applicant issued discharge warning.
941006:	BUPERS removed applicant from the Petty Officer Quality Control probation.

950615:	NAVDRUGLAB, San Diego, report:  Urine sample received on 08JUN95, positive for cocaine.

950620:	NAVDRUGLAB, San Diego, report:  Urine sample received on 15JUN95, positive for cocaine.

950623:	NJP for violation of UCMJ, Article 112A (2 specs):  wrongfully use of a controlled substances.
	Award:  Forfeiture of $661.20 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

950623:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.  Further advised if discharged is approved, you shall be administratively reduced to pay grade E-3.

950623:	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.

950706:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).  

950718:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   

950810:	BUPERS 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 950829 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).

Issue 1.  The applicant states his grief and stress from the loss of his father was the cause of his drug abuse.  He states, he has not incurred any violations of the law since his discharge and has maintained employment.  The NDRB determined there is insufficient documentation to support the applicant’s claim of being an employed, law abiding citizen.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  Therefore, Relief is denied.  

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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