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

 ex-STGSA, USN
Docket No. ND02-00008

Applicant’s Request

The application for discharge review, received 010925, requested that the characterization of service on the discharge be changed to honorable and that the narrative reason be changed to some reason less derogatory.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant did not list any 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 three to two 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.  My discharge was inequitable because it was based on one isolated incident with no other adverse action.  Additionally, the description of the reason for my discharge inequitably characterized, and labeled me.  Again, it was a one time incident that had never occurred prior and never occurred since my discharge.  Other service persons on my ship (USS Towers) that had multiple incidents of a similar nature were not discharged and were able to continue to serve their country. I was one of the eye witnesses to the World Trade Center attack on 09/11/2001.  While I was not in any of the buildings I was about 100-200 yards away from the second tower when the second airliner crashed into it.  I could have been among the injured or killed. Please consider my case seriously.  I would like to once again have the privilege to serve and defend my country.

2.  My post-service conduct has been sufficiently creditable to warrant an upgrade.

Documentation

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

Copy of DD Form 214
Rèsumè
Software Development Agreement dated May 18, 2001
Software Development Agreement dated May 7, 2001
Promissory note for Piper aircraft dated August 18, 1999
List of character references
Copy of pilot’s license (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	831201 - 840704	COG

Period of Service Under Review:

Date of Enlistment:  840705			Date of Discharge:  861003

Length of Service (years, months, days):

	Active:    02  02  29
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  80/49

Highest Rate:  STG3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)			Behavior:  2.80 (1)		OTA:  3.00

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:

840706:	Applicant briefed on Navy's policy of drug and alcohol abuse.

860717:	NJP for violation of UCMJ, Article 86: Absence without leave on 5Jul86.
	Award: Restriction for 7 days, reduction to STGSN.  Reduction suspended for 3 months.  No indication of appeal in the record.

860904:	Retention Warning:  Advised of deficiency (Frequent involvement with military authorities), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

860904:	Vacate suspended reduction to STGSN awarded at CO's NJP of 17Jul86.

860912:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award: Forfeiture of $358.00 per month for 2 months, restriction and extra duty for 45 days, reduction to STGSA.  No indication of appeal in the record.

860915:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of (a): misconduct due to drug abuse as evidenced by punishment under the UCMJ for illegal or wrongful use of a controlled substance, specifically, marijuana, within the current enlistment, and (b): a pattern of misconduct due to commission of a serious offense as evidenced by punishment under the UCMJ for illegal or wrongful use of a controlled substance, specifically, marijuana, within the current enlistment.

860915:	Applicant advised of rights and having elected not to consult 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.

860916:	Drug and Alcohol Abuse Report:  Marijuana abuse, 1 to 3 times per month August 1986, ashore off duty.  Inspection urinalysis on 13Aug86.  Medical officer determined applicant is not dependent and recommended separation.  Commanding Officer recommended separation.  Comments:  “Because [applicant] does not exhibit exceptional potential for further service he is being separated IAW NAVOP 125/85.”

860916:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   

860916:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
 
860921:	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 961003 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 Board found that even a one time drug abuse incident warranted processing for separation, normally under other than honorable conditions.  No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.  Despite the applicant’s claims that others on his ship used drugs and continued to serve, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

Issue 2.  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, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  Despite the applicant’s personal accomplishments, he did not provide sufficient documentation to warrant an upgrade to his discharge.  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