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

ex-MSSN, USNR (TAR)
Docket No. ND01-01020

Applicant’s Request

The application for discharge review was received on 20010731.  The Applicant requests that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant lists the American Legion as the representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20031211.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character and the narrative reason for the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse, authority:  NAVMILSPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“Issue 1:  Post-Service Clemency”

Documentation

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

Verification of treatment center attended, dated May 23, 2001
Certificate of completion, dated March 27, 1998
Character reference letter dated, June 5, 2001
Character reference letter, dated May 2, 2001
Character reference letter, dated July 9, 2001
Character reference letter, dated June 3, 2001
Character reference letter, dated March 22, 2001
Character reference letter, dated April 8, 2002
Character reference letter, dated March 27, 2002
Character reference letter, dated February 22, 2003
Character reference letter, dated August 18, 2003
Utah Cross Certificate, dated September 9, 1999
Memorandum of Appreciation, dated June 13, 1999
Creed of the NCO, dated June 13, 1999
Character reference letter, dated July 21, 1999
Character reference letter, dated January 25, 2000
Character reference letter, dated June 29, 1998
Character reference letter, dated July 19, 1999
Character reference letter, dated August 4, 1999
Character reference letter, dated January 10, 2000
Character reference letter, dated December 4, 2003
Character Questionnaire (5 pages)
Army National Guard DD Form 214 (2 pages)
Character reference letter, dated August 2, 2003
Enlistment extension, dated December 16, 2000
University of Utah letter of acceptance, dated February 22, 2001 (2 pages)
Notice of Phase completion, dated October 30, 2000
Notice of enrollment
Recommendation for award dated August 11, 1999
Magazine Article, undated
Certificate of Appreciation, undated
Utah Army National Guard Drug test
Promotion letter, dated February 18, 2003
Certificate of completion, undated
Certificate of Training, dated June 25, 2001
Request for Tuition Assistance, dated December 2, 2003
Request for Tuition Assistance, dated January 4, 2003
University undergraduate registration letter
College Transcripts (2 pages)
U.S. Army Motor Vehicle ID card
Letter of recommendation, dated June 3, 2001
Diploma from Academy of Health Sciences, dated June 11, 2001 to June 25, 2001
Certificate of affiliation, undated
Letter of completion, dated June 29, 1998

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  830708		Date of Discharge:  870723

Length of Service (years, months, days):

	Active:    01  08  03
	Inactive:  02  04  15

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  26

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.35 (6)	Behavior:  3.50 (6)		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, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

830708:	Applicant reported for initial tour of active duty for training.

830709:	Applicant briefed on Navy's policy of drug and alcohol abuse.

831028:	Applicant released from initial tour of active duty.

860315:	Applicant reported to active duty for 48 months in the TAR program.

870330:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 870320, tested positive for THC.

870403:	NJP for violation of UCMJ, Article 112A: Wrongful use of substance containing THC on 870318.
	Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSN.  No indication of appeal in the record.

870515:	Applicant placed on mandatory urinalysis program for 180 days.

870619:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 870611, tested positive for THC.

870621:	Retention Warning:  Advised of deficiency (Identified as having been involved in one drug related incident (positive command directed urine sample) prior to this date.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870701:	Medical evaluation for drug abuse found the Applicant to be a psychological dependent on marijuana.  

870701:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by 870430 nonjudicial punishment for wrongful use of a controlled substance and having been involved in a positive command directed urine sample on 870608.  No disciplinary action taken.

870702:	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.

870708:	Substance Abuse Report: Marijuana abuse, 1-3 times per month, March 1987 - June 1987, ashore off duty.  Inspection urinalysis June 1987.  Medical officer found Applicant not dependent and recommended separation not via VA hospital.  Commanding Officer recommended separate.  Comments: Member is currently being processed for administrative discharge.  His attitude toward work and the Navy has steadily declined.  He continues to use illegal drugs despite counseling and disciplinary action.  He is not recommended for further naval service.

870709:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  [MSSN (Applicant's) continued use of drugs, despite his initial identification as an illegal drug user and subsequent disciplinary action.  Has rendered him prejudicial to good order and discipline and make him an administrative burden to CLARK.  (Applicant's) behavior has a negative impact on his division as well as his shipmates.  He has no place in CLARK or in the Navy.  He shows absolutely no potential for future naval service.  Based on his continued use of drugs a discharge under other than honorable conditions is recommended.]

870714:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010329:	NDRB documentary record review Docket Number ND00-00463 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19870723 under other than honorable conditions for misconduct due to drug abuse (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:  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, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board appreciates the Applicant’s efforts to improve his life and his involvement in the Army National Guard and encourages him to continue serving.  However, the Board determined that the evidence presented did not mitigate the Applicant’s illegal drug use while on active duty.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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 "afls14.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