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

 ex-SK3, USN
Docket No. ND01-00982

Applicant’s Request

The application for discharge review, received 010725, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing in the Washington National Capital Region.  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 020516.  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

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:

Copy of DD Form 214
Copy of Honorable discharge certificate dated October 26, 1982
Copy of certificate of reenlistment dated October 27, 1982
Copy of good conduct award dated January 1, 1983
Copy of Seabee of the Quarter selection letter dated July 18, 1984
Letter of reference dated March 19, 2001
Letter from pastor, Bible Way, Church of Christ World-Wide, Inc dated March 24, 2001
Letter from applicant's son dated March 1
Copy of police record check dated March 22, 2001
Twenty-five pages from applicant's service record
Copy of appointment of veterans service organization as claimant's representative dated July 10, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USN			790102 - 821026	HON
	Inactive: USNR (DEP)	780929 - 790101	COG

Period of Service Under Review:

Date of Enlistment:  821027		Date of Discharge:  861121

Length of Service (years, months, days):

	Active:    04  00  25
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rate:  SK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.64 (5)	Behavior:  3.34 (5)		OTA:  3.71

Military Decorations:  None

Unit/Campaign/Service Awards:  BEA (2), SSDR (2), GCM

Days of Unauthorized Absence:  2

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:

860918:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 0710, 22Aug86 to 0640, 25Aug86 (2 days/surrendered), violation of UCMJ, Article 112A: Use of controlled substance, to wit: cocaine.
	Award: Forfeiture of $494 per month for 2 months, restriction and extra duty for 45 days, reduction to SK3.  No indication of appeal in the record.

860922:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.  

861002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the illegal or wrongful use or possession of controlled substance.

861002:	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.

861010:	NJP for violation of UCMJ, Article 91:
	Award: Restriction and extra duty for 3 days, reduction to SKSN.  Reduction suspended for 3 months.  No indication of appeal in the record.

861010:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding officer’s comments (verbatim):  SK2 (applicant's) performance and military behavior has dropped to an unacceptable low level.  He has become a disruptive element in his division and the supply department.  This behavior has adversely impacted on the morale of others around him.  He does not exhibit any characteristics of leadership as required of a petty officer.  His use of cocaine combined with a very poor attitude document that Petty Officer (applicant) has no further potential for continued service.  He has been screened by a medical officer and determined not to be physically of psychologically dependent.  I strongly recommend that he be separated from the Naval service and that the characterization of discharge by Other than Honorable.

861112:	CNMPC 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 861121 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 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.  Relief denied.

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