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

ex-SA, USN
Docket No. ND01-00150

Applicant’s Request

The application for discharge review, received 001117, 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 representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010406.  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 was legally a man, however I somewhat immature and I found military life a bit demanding.

2.  I had a drug problem, which I am now addressing and it played a major role in my discharge.

3.  I feel that I deserve another chance in life and a better discharge will assist me in getting that chance.

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:   USN			None
	Inactive: USNR (DEP)	840719 - 840725	COG

Period of Service Under Review:

Date of Enlistment:  840726		Date of Discharge:  860523

Length of Service (years, months, days):

	Active:    01  09  08
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.20 (1)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  CGMU 

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:

850618:	Retention Warning:  Advised of deficiency (Failure to complete Damage Control PQS in the required time frame of six (6) months as prescribed by COMNAVSURFPAC/O'CALLAHANISNT 1500.C), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

850921:	UA from 0730-0759, 850921 for a period of 29 minutes.

851006:	UA from 0730-1400, 851006 for a period of 6 hours and 30 minutes.
 
851127:	NJP for violation of UCMJ, Article 92: On 851118, failed to obey a lawful general order, to wit: COMNAVBASE San Diego notice 1050 by wrongfully violating the Tijuana, Mexico curfew.
Award:  Forfeiture of $250.00 per month for 2 months.  No indication of appeal in the record.

851127:	Retention Warning:  Advised of deficiency (That on 851118 you violated the Tijuana, Mexico curfew), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860114:	NJP for violation of UCMJ, Article 112a: Did on 851230 wrongfully used cocaine a schedule I controlled substance, to wit: cocaine.
Award:  Forfeiture of $350.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

860114:	Retention Warning:  Advised of deficiency (That on 851230 you wrongfully used cocaine), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860505:	Substance Abuse Report indicates applicant is not drug or alcohol dependent.

860505:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by one non-judicial punishment for drug abuse and positive urinalysis findings, to wit: cocaine.

860505:  	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.

860514:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse 

860520:	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 860523 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’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

In the applicant’s issue 2, the Board does not accept drug abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct.  Applicants who use drugs are responsible for their actions and must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.  Additionally, the applicant has presented no evidence to prove he is not using drugs.

Although the applicant may feel he deserves another chance, the Board found the discharge was equitable at the time of discharge.  The applicant had 2 CO’s NJPs and 3 retention warnings during his 1 year and 9 months in the US Navy.  The applicant is responsible for his behavior and must accept the consequences.  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 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 15560), Change 10/85, effective 
16 Dec 85 until 05 Oct 86, 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