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

ex-AKAA, USN
Docket No. ND01-00553

Applicant’s Request

The application for discharge review, received 010321, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized.  The applicant requested a personal appearance hearing before a traveling panel closest to Norfolk, VA.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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.  My discharge was undeserving in the sense I have never used marijuana, but instead they never listened to my story.  My division nor the C.O.  When I was in I was basically a model sailor.  I was SK of the month in my division in Oct. 97.  Made 3rd the first time around, but was never able to put it on.  I was on time daily and did a great job everyday only to receive low evals.  My division never went to bat for me in my situation.  It is hard to fight something of this nature when your own division isnt at your back.  I love the military and would have never done anything of that nature.  My main issue is I would like to be heard by an impartial review board.

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:   None
	Inactive: USNR (DEP)	961108 - 961208	COG

Period of Service Under Review:

Date of Enlistment:  961209			Date of Discharge:  990616

Length of Service (years, months, days):

	Active:    02  06  08
	Inactive:  None

Age at Entry:  17 Parent Consent		Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rate:  AKAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, NUC, NER

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980608:	NJP for violation of UCMJ, Article 128: Assault upon a civilian by pointing a dangerous weapon likely to produce death or grievous bodily harm on 21Apr98.
	Award: Forfeiture of $463 per month for 1 month, restriction and extra duty for 30 days, reduction to AKAA.  Reduction suspended for 6 months.  No indication of appeal in the record.

980608:	Retention Warning:  Advised of deficiency (Assault upon a civilian by pointing a dangerous weapon likely to produce death or grievous bodily harm on 21 Apr 98), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990428:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 18Mar99.
	Award: Forfeiture of $538 per month for 2 months, restriction and extra duty for 45 days, reduction to AKAA.  No indication of appeal in the record.

990507:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by your punishments in your current enlistment, commission of a serious offense as evidenced by his Commanding Officer's nonjudicial punishment held on 8 June 1998, for violation of the Uniform Code of Military Justice, Article 128, assault upon a civilian by pointing a dangerous weapon likely to produce death or grievous bodily harm on 21 April 1998, and drug abuse as evidenced by your Commanding Officer's nonjudicial punishment held on 28 April 1999, for violation of the Uniform Code of Military Justice, Article 112A, wrongful use of marijuana on 18 March 1999.

990507:	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.

990515:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, commission of a serious offense and drug abuse (use).

990601:	Commander, Cruiser Destroyer Group TWO 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 990616 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).

Issue 1.  The applicant offered no documentation to support his allegation that he did not use illegal drugs. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an upgrade.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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 relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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.  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