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

ex-FR, USNR
Docket No. ND02-00001

Applicant’s Request

The application for discharge review, received 010924, 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 020517.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Picture of applicant, in fire fighter's gear
Copy of DD Form 214
Statement from applicant
Copy of certificate of membership Oklahoma State Firefighters Association card
Copy of certificate of emergency medical technicians card
Copy of firefighter identification card
Copy of Oklahoma driver's license
Copy of verification of training dated December 18, 1998
Copy of certificate for participation in the Annual State Fire School dated August 16, 1997
Copy of certificate for successful completion of incident management system dated July 18 - 19, 1998
Copy of certificate for Emergency Medical Technician - Basic dated June 16, 1997
Copy of certificate for Fire Fighter I dated September 27, 1997
Copy of certificate for Hazardous Materials First Responder Awareness Level dated September 27, 1997
Copy of certificate for Fire Academy A dated September 19, 1997
Copy of certificate for Fire Academy B dated September 26, 1997
Copy of certificate of attendance dated February 6, 7 and 8, 2001
Copy of certificate for Water Rescue dated April 29, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  940112		Date of Discharge:  951114

Length of Service (years, months, days):

	Active:    01  01  26
	Inactive:  00  08  06

Age at Entry:  18			Years Contracted:  8

Education Level:  11			AFQT:  32

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

950228:	NAVDRUGLAB, Norfolk, VA reports applicant's urine sample, received 950221, tested positive for cocaine.

950329:	NJP for violation of UCMJ, Article 112A: Wrongfully use controlled substance, to wit: cocaine.
	Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

950331:	Notice of Administrative Board Procedure Proposed Action.  Applicant notified, if separation is approved, least favorable discharge characterization will be Other Than Honorable.  Applicant elects Administrative Board.

950510:	An Administrative Board found by a unanimous vote that the applicant committed misconduct due to drug abuse and the characterization should be Other Than Honorable.

950516:	Commanding Officer recommends separation due to misconduct drug abuse. 	

950713:	BUPERS directs a second Administrative Board due to an improper composition of original board.  Board must be comprised of all officers and at least one Reserve Officer.  
	
950921:	Applicant re processed.  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Naval Drug Laboratory, Norfolk, VA message 281036Z February 1995.  [Extracted from CO's message dated 5Oct95.]

950921:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.  [Extracted from CO's message dated 5Oct95.]

951005:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
 
951025:	BUPERS 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 951114 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 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 Board reviewed the applicant’s credentials as a professional firefighter.  However, the applicant failed to provide documentary evidence to demonstrate his sobriety (drug free lifestyle), positive community volunteer service, employment history, 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. 

The applicant introduced no decisional issues for consideration by the Board.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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