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

 ex-SA, USN
Docket No. ND02-00021

Applicant’s Request

The application for discharge review, received 010925, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement to the applicant he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal hearing

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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I feel that my discharge should be reviewed and upgraded to the point were reenlistment is possible.  The discharge should be upgraded due to the fact that my service in the United States Navy was above satisfactory.  My mistake was and should have been dealt with serious consequences.  However, I was not made aware of my military rights before I was questioned about details that incriminated myself.  My mistake, experimental use of an illegal substance, was made while I was serving in a holding company for five months prior to the beginning of my cryptologic"A" School.  As school progressed I found myself the leading sailor in my class with a 96% average with two weeks left before graduation.  I was interrogated about the use of drug ectasy which had by that time taken place some four months previously.  My mistake was immature and also irresponsible.  It has been over a year since I was discharged from the Navy, and I still wish the military was in my life.  After the terrorist attacks to America I feel that I still have a duty to my country, and upgrading this discharge so that I may reenlist is the first step.  I have never been more proud than when I was in uniform saluting the American Flag during colors. I ask the Board to please upgrade my discharge for reenlistment.  During my time spent on NTTC Corry Station I received two letters of appreciation one from the Captain of NAS Pensacola and another from the Captain of NTTC Corry Station.  

Documentation

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

Copies of DD Form 214 (2)
Letter from Applicant
Employment Reference Letter
Reference Letter from Applicant's Parents
Copy of Employment Progress Report

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	990115 - 990823	COG

Period of Service Under Review:

Date of Enlistment:  990824		Date of Discharge:  000714

Length of Service (years, months, days):

	Active:    00  10  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  72

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:   NMA	Behavior:  1.00 (1)		OTA:  1.00

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, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

000612:	Statement from applicant admitting to M____ O. R____, a Special Agent of the Defense Security Service, to the use of ecstasy.

000628:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000628:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000628:	Medical evaluation indicates applicant does not meet Abuse/Dependence criteria for drug or alcohol.

000706:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments: Seaman Apprentice P____ report to this command on 991102.  On 000612, during an interview, Seaman Apprentice P____ revealed his use of ecstasy on several occasions.  Seaman Apprentice P___ has no potential for further naval service.  Therefore, I recommend that he be separated from the naval service with an Other Than Honorable discharge.    

000707:	Chief of Naval Education and Training authorized 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 000714 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 states that the discharge should be changed so the applicant may reenlist.  The NDRB is under no obligation and will not upgrade a former service member’s discharge for the purpose of allowing him to reenlisting into any branch of military service.  The NDRB is chartered to review the discharge of former service members to determine if the discharge was properly executed and that the characterization assigned was equitable.  The Board determined that the discharge was proper and equitable.  Relief based on this issue is denied.

Issue 2 states that the applicant was not aware of his rights prior to questioning.  The record shows that the applicant made a voluntary statement regarding his use of illegal drugs while on active duty, on 000612, during an interview with a Defense Security Service (DSS) agent.  His voluntary statement was sufficient to warrant processing for separation by reason of use of illegal drugs.  Navy regulations mandate that drug abusers be processed for administrative separation.  The record shows the applicant was afforded his due process.  The discharge was proper and equitable.  Relief is denied.

Issue 3 states that his service was above satisfactory.  This issue has no merit.  The applicants overall performance markings were 1.0.  His marks are well below average and further demonstrate that the Other Than Honorable discharge was equitably assigned.  Relief is denied.

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 clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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