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

ex-AMHAN, USN 
Docket No. ND01-00081

Applicant’s Request

The application for discharge review, received 001019, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 010517.  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.  I am requesting this change in discharge because I feel strongly that the reason for my discharge should not be punished for life.  Everything in my life is affected by the type of discharge.  I strongly feel that I have been punished long enough for this offense.  I was a proud and good sailor.  I am asking that the board review my case and up grade my discharge. 

Documentation

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

Counsel Appointment Letter from Applicant
Reference Letters (3) 

Additional documentation provided:

University of the District of Columbia Report of Grades
Letter of Promotion dtd 6 March 2000
Board of Funeral Directors License
Certificate from Whitman-Walker Clinic dtd 17 Mar 01
Evaluation from Whitman-Walker Clinic dtd 28 Apr 00
Unsigned Letter of employment from Mr. W. C____ dtd 18 May 01
Letter of employment from Ms. M. M____, Human Resources Asst. dtd 23 May 01

PART II - SUMMARY OF SERVICE

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

	Active:   USN			760707 - 800402	HON
		   USN			800403 - 880217	HON
	Inactive: USNR (DEP)	760610 - 760706	COG

Period of Service Under Review:

Date of Enlistment:  880218		Date of Discharge:  901217

Length of Service (years, months, days):

	Active:    02  09  20
	Inactive:  None

Age at Entry:  39			Years Contracted:  3 

Education Level:  14			AFQT:  64

Highest Rate:  AMH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (5)	Behavior:  2.92 (5)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  JSCM, MUC, GCM (3rd award) 

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:

880218	Reenlisted onboard VAQ-33, Key West, FL for 3 years.

880411:	Joined NATTC, Lakehurst, NJ (student).

880510:	Applicant completed 4 weeks of Navy Security Guard School with final mark of SAT.

880520:	Joined NAF Washington, DC.

890331:	Applicant's Enlisted Performance Evaluation Report for the period 880324 through 890331 reflected the following comments:  "Applicant was removed from the Security Department due to a cocaine positive urinalysis and providing an invalid sample.  As a Police Officer and Petty Officer this section is directly contrary to both Command and Navy policy and greatly reduces her level of personal integrity.  Not recommend for advancement at this time, however she is recommended for retention barring any further drug abuse.”

890406:	NJP for violation of UCMJ, Article 112a: Wrongfully used cocaine.
	Award:  Forfeiture of $400.00 per month for 2 months, reduction to E-4.  No indication of appeal in the record.

890406:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Art. 112a: Wrongfully use cocaine), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890425:	Applicant assigned mark of 2.00 in Personal Behavior due to conviction at NJP of wrongful use of cocaine.

900412:	NMPC issued applicant a Letter of Substandard Service and did not desire to make a statement.

900719:	Joined VX-1, PATUXENT RIVER, MD.

900928:	NAVDRUGLAB Norfolk, VA, reported applicant's urine sample, submitted on 900920, tested positive for cocaine.

901012:	NJP for violation of UCMJ, Article 112a: Wrongfully used cocaine on or about 900920.
	Award:  Forfeiture of $481.00 per month for 2 months, restriction for 45 days, reduction to E-3.  No indication of appeal in the record.

901012:	Applicant notified of consideration for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

901012:  	Applicant advised of her 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 and the right to submit a statement in her behalf.

901031:	Medical evaluation for drug abuse found the applicant to be not drug dependent and stated "No VA treatment requested or recommended.”

901031:	DAAR indicated applicant abused cocaine, ashore, off duty, frequency of use could not be determined.  Identified by random urinalysis on 900924.  Medical Officer determined applicant was not dependent on drugs, not amenable to treatment, and recommended separation not via VA.  CO stated applicant had poor potential for future naval service.
 
901114:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

901205:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930303:	NDRB documentary record review Docket Number ND92-00156 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 901217 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 applicant was awarded CO’s NJP on two separate occasions for wrongful use of a controlled substance (cocaine).  The applicant received a retention warning and a Letter of Substandard Service from the Naval Military Personnel Command following her first NJP, advising her that further misconduct may result in her discharge from the Navy.  The applicant failed to heed these warnings and was administratively separated for misconduct due to drug abuse.  She was afforded all her rights and due process and the Board found nothing in the records nor did the applicant provide information to indicate that there was an error in fact, law, procedure or discretion associated with her discharge.

The applicant states in issue 1 that “I am requesting this change in discharge because I feel strongly that the reason for my discharge should not be punished for life.  Everything in my life is affected by the type of discharge.  I strongly feel that I have been punished long enough for this offense.  I was a proud and good sailor.  I am asking that the board review my case and up grade my discharge.”  The Board found that the applicant’s discharge characterization is not a punishment for life, but rather a characterization of her enlistment.  The record clearly reflects her willful disregard for the requirements of military discipline and demonstrated that she was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for her conduct or that she should not be held accountable for her actions.  No relief will be granted based on this issue. 

Additionally, the Board considered post service documents in the recharacterization of discharge.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 Board did not find that the applicant’s post service conduct warranted an upgrade to discharge.  The applicant’s service is accurately characterized as having been performed under other than honorable conditions.  Relief is denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, 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