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

ex-FCSN(SW), USN
Docket No. ND01-00526

Applicant’s Request

The application for discharge review, received 010315, 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 010928.  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.  My discharge was inequitable due to it being based on one isolated incident in an otherwise exemplory 11 year naval career.

2.  The awards, medals, previous discharges (at reenlistment), evals, L.O.A. & L.O.C. do not justify the type discharge recieved.

3.  My 11 year service to my country.

4.  I am aware that at the current time one failure if a drug test does not always result in immediate discharge from the Navy while the official policy has not changed.  This is a definite injustice.

Documentation

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

Letter from applicant to senator dated February 1, 2001
Copy of response from senator dated March 6, 2001
Letter from Board of Correction of Naval Records to senator dated February 27, 2001
Letter from applicant dated March 26, 2001
Copy of DD Form 214
Twenty-six pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USN			811026 - 851023	HON
		   USN			851024 - 911022	HON
	Inactive: USNR (DEP)	810717 - 811025	COG

Period of Service Under Review:

Date of Enlistment:  911023		Date of Discharge:  930226

Length of Service (years, months, days):

	Active:    01  04  04
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  12			AFQT:  60

Highest Rate:  FCC(SW)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.53 (3)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), NDSM, NAM, BER, MUC

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:

921211:	NAVDRUGLAB, Norfolk, VA reports applicant's urine sample, received 921201, tested positive for cocaine.

921222:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 30Nov92, to wit: cocaine.
	Award: Forfeiture of $879.90 per month for 2 months.  No indication of appeal in the record.

930105:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by you being found guilty of violation of UCMJ Article 112A: wrongful use of a controlled substance, to wit: cocaine; which was evidenced by you testing positive on a command random sampling urinalysis test as reported by the Navy Drug Lab Norfolk on 11 December 1992.

930107:	Medical evaluation for drug abuse found no evidence of drug use or dependence.

930111:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930125:	Applicant waived right to administrative discharge board.

931227:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930212:	BUPERS 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 930226 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 response to applicant’s issue 1, the Board found that the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident".  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.

In response to applicant’s issues 2-4, the Navy’s “zero tolerance” policy for the use of illegal drugs was in effect at the time the applicant committed his misconduct and remains in effect today and the applicant was aware of the “zero tolerance” drug policy.  Despite the applicant’s years of service, awards and performance evaluations, these issues do not exculpate the applicant from his misconduct, nor provide a foundation upon which the Board can grant relief.  The discharge was proper and equitable.  Relief denied.

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.  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, relief is denied.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided an application is received at the NDRB within 15-years from the date of his discharge. 

Pertinent Regulation/Law (at time of discharge) 

A.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 "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