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

 ex-AR, USN 
Docket No. ND01-00050

Applicant’s Request

The application for discharge review, received 001016, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim):

1.  My Commanding Officer, P_ D. M_ and I had an agreement.  If I would work with NIS of NAS Lemoore in the catching of the drug dealer from where I had gotten the drugs, in return for a General Discharge.  I worked with NIS with the catching of the personal and my CO had me sign for a General Discharge.  I believe the reason was because the personal in my squadron that had gotten out before me had vandalized his car and some of the BEQ's on base.  I believe the CO of the base discussion was unjust.
I realized what I had donned was v ery wrong experimenting with drugs and I regret it very much.  Sincerely, (Signed (applicant)).

Submitted by VFW:

2.  We ask that you consider the applicant's issues and the statements he presents on his behalf and that you change the discharge as requested.

Documentation

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

Applicant's undtd letter to the Board (rec'd Oct 12, 2001)
Character Reference ltr from CDR P_ D. M_, VFA-25, dtd Mar 20, 2000
Record check from City of Ridgecrest Police Department dtd Sep 20, 2001
Copy of DD Form 214 (2 copies)
Applicant's undtd letter (rec'd Mar 9, 2001)
Applicant's undtd letter (rec'd Jun 6, 2001)
Applicant’s letter dtd 10 Nov 2001
Character Reference ltr from CDR P_ D. M_, dtd 1 Nov 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	98012 - 980203	COG

Period of Service Under Review:

Date of Enlistment:  980204		Date of Discharge:  990813

Length of Service (years, months, days):

	Active:    01  06  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, Marksman Rifle Badge

Days of Unauthorized Absence:  None

*No Marks Found in service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

SERVICE RECORD DID NOT CONTAIN DISCHARGE PACKAGE AND APPLICANT WAS UNABLE TO PROVIDE A COPY.

990609:	NJP for violation of UCMJ, Article 112a:  wrongful use of controlled substance.
	Award:  Forfeiture of ½ pay per month for 2 months, extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

990813:	Applicant discharged with an Under Other Than Honorable Conditions due to misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990813 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).

The NDRB reviewed the applicant’s service record and presumed regularity in the conduct of government affairs throughout the discharge proceedings.  Although the applicant’s CO may have recommended a General discharge, it was within the rights of the discharge approving authority to award an Other Than Honorable discharge.  There is no impropriety or inequity in the discharge authority’s award of an Other Than Honorable after the member’s CO recommended a General.  The presumption of regularity assumes the discharge authority considered all the circumstances surrounding the case, including the applicant’s willingness to assist NCIS.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, and employment history to warrant relief based on post service.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

The VFW issue reiterated the applicant’s issue and is answered above.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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