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

ex-SA, USN
Docket No. ND01-00333

Applicant’s Request

The application for discharge review, received 012501, requested that the characterization of service on the discharge be changed to General/under Honorable conditions and the reason for the discharge be changed to "early out".  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 010710.  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 and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I believe my discharge was inequitable because it was based on one incident in 2 1/2 years of service with no other adverse action on my part.  I believe that 1 month prior to my discharge, the rules on E-4 and below getting a second chance on a failed urinalysis were changed to a zero tolerance.  I was in the wrong place at the wrong time and made a bad decision.

2. I do not know what an acceptable reason for discharge would be, but to have it changed from what is on my DD 214 would be great.  Maybe that I opted for an "early out".

Documentation

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

Copy of Certificate of Completion of Apprenticeship dated October 28, 1997
Copy of Certificate of Eligibility from Department of Veterans Affairs
Character reference dated January 9, 2001
Character/job reference dated January 9, 2001
Copy of DD Form 214 (2 copies)
Character reference dated March 7, 2001
Police record check dated February 13, 2001
Copy of credit check dated February 13, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890907 - 890920	COG

Period of Service Under Review:

Date of Enlistment:  890921		Date of Discharge:  920318

Length of Service (years, months, days):

	Active:    02  05  28
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  3.67 (3)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, SASM, NDSM, NUC, KLM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890925:	Applicant briefed on Navy's policy on drug and alcohol abuse.

89XX06:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Service directed urinalysis 890921.  DAPA found applicant not dependent and recommended Level I treatment.  Commanding officer recommended retention and written warning.  Comments: Applicant tested positive for THC in the accession pipeline urinalysis.

900927:	Screening for recommendation for place on commands Personnel Reliability Program: Disqualifying traits: Personality disorder NOS, severe, possible ETOH abuse.  Applicant is not a recommended for placement on commands Personnel Reliability Program.  Recommend DAPA assessment.

920130:	NJP for violation of UCMJ, Article 92: Failure to obey a general regulation (OPNAVINST 5350.4B), violation of UCMJ, Article 112A: Wrongful use of a scheduled I controlled substance, to wit: THC.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  No indication of appeal in the record.

920204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920204:  	Applicant advised of his rights and having consulted 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.

920218:	Chemical Dependency Screen: Impression: 1: Alcohol abuse. 2: THC abuse.  Applicant is not physically dependent on alcohol or other substances.  Recommendation: Applicant does not desire, nor do I recommend inpatient chemical dependency treatment through Navy or VA facilities.

920306:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse and misconduct due to the Commission of a serious offense.
 
920316:	BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920318 under Other Than Honorable conditions for misconduct due to Commission of a serious offense (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).

Issue 1.  The applicant states, his discharge was inequitable because it was based on one incdent in 2.5 years of service with no other adverse action on his part.  The one incident the applicant mentions was use of illegal drugs.  The applicant tested positive for THC in the accession pipeline urinalysis.  Drug abuse requires mandatory pocessing for separation.  The discharge was proper and equitable.  Relief denied.

Issue 2.  The applicant states he wants the reason for dicahrge changed to to “early out.”  The reason for discharge on the applicant’s DD-214 states “Misconduct-Commission of a Serious Offense.”  The Board determined the reason for discharge is correct and accurate as stated.  Relief denied.

The following is provided for the benefit of the applicant.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 (failure to obey a general order), and Article 112A (wrongful use, possession, etc. of controlled substance), if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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