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

ex-OSSN, USN
Docket No. ND01-00591

Applicant’s Request

The application for discharge review, received 010328, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 011018.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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.  I am respectfully requesting that my current discharge of "other than honorable" be upgrading to "general/under honorable conditions" based upon these factors: with 7 years 8 months of service which I extolled exemplary performance of my duties and responsibilities including being honorably discharged on 14 July 1994, to being awarded two (2) letters of commendation, two (2) good conduct medals, and being awarded the Navy Achievement Medal for saving a fellow human being while in the line of duty, I feel my discharge was inequitable by being based on one incident of misconduct due to drug abuse, when there was never an offense of this nature committed by myself at any prior time.  Post service conduct includes being a productive member of society, both for my employer (evaluations enclosed) and myself by attending community college at night by keeping in good standing with the school and a 3.0 grade point average.  Furthermore the character that I have shown since leaving the service is impeccable, as so described in the attached character witness statements (enclosed).  I appreciate your time in regards to this matter. Applicant marked the block "I have listed additional issues as an attachment to this application."  None were found in case folder.

Documentation

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

Copy of good conduct award dated July 18, 1994
Copy of honorable certificate dated July 14, 1994
Copy of citation for February 1991 to May 1995
Copy of citation for September 1995 to September 1997
Copy of Navy and Marine Corps achievement medal certificate dated September 3, 1997
Copy of character witness statements dated January 4, 2001, January 29, 2001
Copy of apprentice evaluation form dated December 23, 1998, and June 1999
Transcript of academic record dated January 8, 2001
Five pages from applicant's service record, not previously available to the Board.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			900718 - 940714	HON
	Inactive: USNR (DEP)	890912 - 900717	COG

Period of Service Under Review:

Date of Enlistment:  940715		Date of Discharge:  980320

Length of Service (years, months, days):

	Active:    03  08  06
	Inactive:  None

Age at Entry:  21			Years Contracted:  5

Education Level:  12			AFQT:  45

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  NAM 

Unit/Campaign/Service Awards:  GCM, Letter of Commendation

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:

970930:	NJP for violation of UCMJ, Article 92: Dereliction of duty, failing to perform duties as a patrolman, violation of UCMJ Article 130: Housebreaking, unlawful entry into a fitness center, violation of UCMJ Article 121; Larceny, larceny of a sports replenishment drink, military property of a value of less than $100.
	Award: Forfeiture of $200 per month for 1 month, reduction to OS3.  Reduction suspended.  No indication of appeal in the record.

980305:	Vacate suspended reduction to OS3 awarded at CO's NJP dated 30Sep97 due to continued misconduct.

980305:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
	Award: Forfeiture of $615 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN.  No indication of appeal in the record.

980306:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980306:	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.

980312:	Applicant waived right to screening for drug dependency and any subsequent treatment.  [Extracted from CO's message dated 13Mar98.]

980313:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

980320:	COMCRUDESGRU THREE 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 980320 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’s issue 1 states:  “I am respectfully requesting that my current discharge of "other than honorable" be upgrading to "general/under honorable conditions" based upon these factors: with 7 years 8 months of service which I extolled exemplary performance of my duties and responsibilities including being honorably discharged on 14 July 1994, to being awarded two (2) letters of commendation, two (2) good conduct medals, and being awarded the Navy Achievement Medal for saving a fellow human being while in the line of duty, I feel my discharge was inequitable by being based on one incident of misconduct due to drug abuse, when there was never an offense of this nature committed by myself at any prior time.  Post service conduct includes being a productive member of society, both for my employer (evaluations enclosed) and myself by attending community college at night by keeping in good standing with the school and a 3.0 grade point average.  Furthermore the character that I have shown since leaving the service is impeccable, as so described in the attached character witness statements (enclosed).  I appreciate your time in regards to this matter.”  The Board carefully considered the equity of the discharge based on the applicant’s entire service record, accomplishments, and misconduct while on active duty, and found the Other Than Honorable discharge accurately characterizes the applicant’s service.  The record shows the applicant was found guilty at NJP on two separate occasions of committing serious offenses.  The applicant’s issue that his discharge was inequitable based on one incident is without merit. 

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 
Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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