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

ex-MMFN, USN
Docket No. ND01-00377

Applicant’s Request

The application for discharge review, received 010205, 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 American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011031.  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

1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good.

3.  I have received letters of recommendation.

4.  I have been a good citizen since discharge.

5.  My record of NJPs/Article 15s indicates only isolated or minor offenses

6.  My ability to serve was impaired by my youth and immaturity.

7.  Personal problems impaired my ability to serve.

8.  My use of drugs impaired my ability to serve.

9.  The punishment I got was too severe compared with today's standards.

10  The punishment I got at discharge was too harsh--it was much worse than most people got for the same offense.

Documentation

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

Copy of DD Form 214 (2 copies)
Twenty-eight pages from applicant's service record
Letter from a U.S. Representative dated September 26, 2000
Letter of recommendation dated October 9, 2000
Letter of recommendation dated October 9, 2000
Letter of recommendation dated October 6, 2000
Letter of recommendation dated October 2, 2000
Letter of recommendation, undated
Letter of recommendation dated October 22, 2000
Letter of recommendation, undated
Letter of recommendation dated October 2, 200
Letter of recommendation dated September 25, 2000
Copy of graduate certificate dated May 10, 1995
Letter from a Member of Congress dated November 7, 1995
Copy of Eagle Scout Certificate dated April 6, 1995
Copy of certificate of recognition dated April 26, 1995
Copy of certificate of induction into Phi Theta Kappa Society dated March 19, 1999
Copy of certificate date 1998-1999
Copy of college transcript from North Harris Montgomery Community College dated February 18, 2000
Comments from the American Legion dated September 21, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960322 - 960328	COG

Period of Service Under Review:

Date of Enlistment:  960329		Date of Discharge:  981009

Length of Service (years, months, days):

	Active:    02  06  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  82

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (5)*		Behavior:  2.40 (5)*		OTA:  2.69*

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Provided by the applicant

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:

980615:	NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample, received 980605, tested positive for THC.

980616:	Applicant tested positive for THC.

980709:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 26May98.
	Award: Forfeiture of $591 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFN.  No indication of appeal in the record.

980729:	CAAC evaluation: Diagnosed as drug dependent (in remission).  Recommended for Level III treatment.

980731:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim):  MMFN (applicant's) misconduct and attitude are not conducive to continued active duty service.  He was found guilty at nonjudicial punishment of wrongful use of marijuana as evidenced by his positive urinalysis on 16 June 1998.

980804:	Commander, Cruiser-Destroyer Group TWELVE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

980911:	Applicant to ARD for treatment.  [Extracted from applicant's supporting documents.  Letter dated 6 October 1998].

981006:	Letter from applicant to Commanding Officer requesting an administrative discharge board even though he had waived his right in August 1998.  [Extracted from applicant's supporting documents].

Partial discharge package missing from records.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981009 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).

Issues 1 and 4.  There is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. 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.  The applicant's efforts need to be more encompassing than those provided.  In the applicant’s statement, he indicated that character references were included in his package, however, none were present.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  

Issues 2, 3, 5, 8, 9 and 10.  The applicant’s performance prior to the drug abuse doesn’t mitigate his use of illegal drugs.  The applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

Issues 6 and 7.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his personal problems, immaturity and youth were factors which contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further military 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. Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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