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

 ex-AA, USN
Docket No. ND01-00757

Applicant’s Request

The application for discharge review, received 010510, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020924.  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 at the time of issue.  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, as submitted

1.	This former member opines that his post-service conduct has been sufficiently
creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Statement from applicant dated May 16, 2000
Applicant's DD Form 214 (2)
Character reference dated February 1, 2001 
Copy of active duty photo of applicant
Character reference from K_ A. T_, undated
Character reference from Major J_T. C_, Ret., undated
Copy of FBI criminal record check, dated August 12, 2002 (2 pages)
Letters to applicant from Transportation Security Administration dated September 16 and September 4, 2002
Character letter from Cobb County, Department of Family and Children Services dated      January 18, 2001
Character/job letter from Mars Music dated January 19, 2001
Character reference from Minister of Music, Elizabeth Baptist Church, dated January 27, 2001
Character reference from Ann's Nursing Service dated January 23, 2001
Character reference from Criminal Investigator, Fulton County District Attorney, Atlanta Judicial Circuit, Atlanta, GA, undated
Character reference dated January 31, 2001
Police record check dated January 30, 2001 (case pending for speeding)
Letter from the Emory Clinic, Inc. dated February 2, 2001 with laboratory reports (3 pages)
Job/character reference dated July 5, 2001
Character reference from Deputy Director, Department of Communications dated July 17, 2002
Character reference dated August 6, 2002
Character reference dated August 14, 2001
Applicant's resumé (3 pages)
Laboratory test results dated August 13, 2002 (2 pages)
Character reference dated August 20, 2002
Urine drug screen dated August 16, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	840223 - 840325	COG

Period of Service Under Review:

Date of Enlistment:  840326		Date of Discharge:  860619

Length of Service (years, months, days):

	Active:    02  02  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.40 (3)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

840401:	Applicant briefed on Navy's policy on drug and alcohol abuse.

850717:	NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana on or about 19May85.
	Award: Forfeiture of $347 per month for 2 months, restriction and extra duty for 30 days, reduction to AA.  No indication of appeal in the record.

850904:	Drug and Alcohol Abuse Report:  Marijuana abuse, May85, less than monthly, afloat.  Search/Seizure urinalysis May85.  CAAC found applicant not dependent and recommended Level I treatment.  Commanding Officer recommended retention.  Comments: A good airman.  Performance has not faltered since first NJP for confirmed drug abuse.  Has potential for future service.  Recommended for advancement and retention in the United States naval service.

860210:	NJP for violation of UCMJ, Article 112a: Use of marijuana onboard USS MIDWAY on 4Jan86.
	Award: Forfeiture of $358 per month for 2 months, restriction and extra duty for 45 days, reduction to AA.  No indication of appeal in the record.

860211:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by commission of two military offenses involving drug abuse and for serious misconduct as evidenced by commission of a military offense which would warrant a punitive discharge under the Manual for Courts-Martial.

860228:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

860308:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

860313:	Drug and Alcohol Abuse Report:  Marijuana abuse, Jan86, less than monthly, ashore off duty.  Inspection urinalysis Jan86.  CAAC found applicant not dependent and recommended separation not via VA hospital.  Commanding Officer recommended separation.  Comments: Second NJP for confirmed drug abuse.  Shows no potential for future service.  Recommended for separation from the United States naval service.

860324:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.  Commanding Officer's comments: I concur with the findings of the Administrative Discharge Board in the case of applicant.  Applicant was twice found guilty at Commanding Officer's NJP for violation of Article 112a, both cases being wrongful use of marijuana.  This Commanding Officer also concurs in the CNO's policies of zero drug tolerance and separation of two time drug abusers.
My recommendation remains: Discharge, under other than honorable conditions. 

860401:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010313:	NDRB documentary record review Docket Number ND00-00727 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860619 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’s discharge characterization accurately reflects his service to his country.  The use of illegal drugs is a serious offense and normally warrants a discharge under other than honorable conditions.  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.  Despite the record of accomplishments the applicant provided, the Board found that the applicant’s post-service conduct does not sufficiently mitigate the applicant’s misconduct while on active duty.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 10/85, effective 
16 Dec 85 until 05 Oct 86, 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