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

ex-CECN, USN
Docket No. ND01-00044

Applicant’s Request

The application for discharge review, received 001011, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to gen or medical.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808.  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 and reason for 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.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

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: USNR (DEP)	841005 - 841008	COG

Period of Service Under Review:

Date of Enlistment:  841009			Date of Discharge:  891006

Length of Service (years, months, days):

	Active:    04  11  28
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4 (12 months extension)

Education Level:  12				AFQT:  30

Highest Rate:  CE3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.65 (4)	Behavior:  3.44 (5)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (4)

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:

841011:	Applicant briefed on Navy's policy on drug and alcohol abuse.

850405:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
	Award: Forfeiture of $310.20 per month for 2 months, restriction and extra duty for 45 days, oral admonition and reprimand.  No indication of appeal in the record.

851129:	NJP for violation of UCMJ, Article 95: Resisting apprehension on 20Nov85, violation of UCMJ, Article 134: Drunk and disorderly on 20Nov85.
	Award: Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 30 days, reduction to CECA.  Reduction suspended for 6 months.  No indication of appeal in the record.

851212:	Retention Warning:  Advised of deficiency (Resisting apprehension and drunk and disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

881008:	Applicant's 12 months extension becomes operative.

890613:	NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample, received 890605, tested positive for THC.

890717:	NIS Report found in service record.

890721:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
	Award: Forfeiture of $464 per month for 2 months, extra duty for 45 days, reduction to CECN.  No indication of appeal in the record.

89xxxx:	Medical evaluation for drug/alcohol abuse found the applicant to be a drug abuser, not alcohol dependent.  Recommend enter in ETOH program prior to admin sep.  Level III through VA upon separation

890721:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer's Nonjudicial Punishment on 21 July 1989.

890721:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890921:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890927:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

891005:	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 891006 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 was awarded CO’s NJP for wrongful use of marijuana, drunk and disorderly and resisting apprehension.  The applicant was given a retention warning advising him that further misconduct could result in an administrative discharge from the Navy.  The applicant failed to heed this warning and was therefore discharged.  The Board found that the applicant’s service is accurately characterized as having been served under other than honorable conditions.  Relief is denied 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.  In response to the applicant’s issue 2, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant 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), Change 6, effective 11 Jan 89 until 13 Jun 90, 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 "afls10.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