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

ex-ENFN, USN
Docket No. ND01-00160

Applicant’s Request

The application for discharge review, received 001127, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010503.  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 (verbatim)

1.  Change discharge to honorable due to drug waiver.

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on January 12, 2001 and the following comments are hereby submitted.

The applicant initially enlisted in the Active Mariner Program (USNR) in 1981. He commenced active duty July 2, 1982 for a period of 36 months.  On June 4, 1985 he reenlisted USN for 3 years.  This enlistment was extended on August 14, 1987 for 15 months and was further extended for 12 months on September 28, 1987.  During his 12 years of service he spent a little over 8 years on arduous sea duty.

During his 12 years of service the applicant received only 2 non-judicial punishments (NJP).  One in 1987 and the final one in 1994

The applicant was obviously prepared for a long and illustrious career in the United States Navy.  He had been recommended for further advancement.  His one moment of indiscretion and lack of good judgment destroyed any dreams he may have had for future years in the Navy.  However, this is not the picture of a drug addict or a criminal.  The many years of honorable service should be taken into consideration.  The loss of a promising career is punishment in itself.  We feel that the applicant has been punished enough.  Should this applicant's one mistake ruin the rest of his life?  We feel to ruin the rest of the applicant's life due to one mistake is not in the best interest of the Navy, the applicant, or to society as a whole.  It is time to allow the applicant to get on with his life.  Allow him to say the United States Navy is firm and swift in it's justice, but that it is also compassionate.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be upgraded to a General Discharge.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN	R		811008 - 850603	HON
		   USN			850604 - 900903	HON
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  900904		Date of Discharge:  940712

Length of Service (years, months, days):

	Active:    03  10  09
	Inactive:  None

Age at Entry:  26			Years Contracted:  5

Education Level:  12			AFQT:  19

Highest Rate:  EN1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.97 (6)	Behavior:  3.67 (6)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  BER, GCM (2), SSDR (3), SASM with Bronze Star, MUC, 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:

940518:	NAVDRUGLAB, Oakland, CA reports applicant's urine sample received 940509, tested positive for cocaine.

940523:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 29Apr94.
	Award: Forfeiture of $961 per month for 2 months, restriction and extra duty for 45 days, reduction to EN2.  No indication of appeal in the record.

940615:	Under investigation by Honolulu Police Department for driving while intoxicated.  BAC of 0.13.  Awaiting scheduled court date.

940708:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by failing to pass a random urinalysis screening conducted onboard USS INGERSOLL (DD 990) on 29 April 1994.

940708:  	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.

940708:	Commanding officer directed discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim):  EN2 (applicant's) use of a controlled substance (Cocaine) cannot be tolerated. Accordingly, EN2 (applicant) was administratively reduced to E-3 and received an Other Than Honorable Discharge commensurate with reference (a).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940712 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 requested in issue 1 that the Board “change discharge to honorable due to drug waiver.”  The Board found that the applicant admitted to pre-service drug use during his enlistment processing.  In addition, the applicant was taken to CO’s NJP on 940523 for wrongful use of cocaine and was also awaiting a court date for a DUI.  The Board finds that the applicant’s service is accurately characterized as having been served under other than honorable conditions.  No relief will be granted based on this issue. 

In response to the applicant’s issue 2, although the applicant feels his many years of service should be taken into consideration, the applicant’s characterization is for the current enlistment only.  During this enlistment, the applicant’s serious misconduct warranted an other than honorable discharge.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of 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.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and 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 15560C), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, 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