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

 ex-AOAN, USN
Docket No. ND02-00027

Applicant’s Request

The application for discharge review, received 010917, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Release from Active Duty.  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 020701.  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, as submitted

1.  My other than honorable discharge was improper and therefore warrants an upgrade to honorable since it resulted from a Uniform Code of Military Justice, Article 15, Commanding Officer's Non-Judicial Punishment proceeding (Captains Mast) specifying a violation of Article 112a for consuming mushrooms.  Contrary to this charge, mushrooms are not identified as a controlled substance under Article 112a, Wrongful Use, Possession, Etc., of Controlled Substances or 21 United States Code Section 812, Schedules of Controlled Substances.

The finding of the Captains Mast was based on the Details of Offense contained in the Report and Disposition of Offenses dated 19 September 2000 (Document 1), as follows: "On 19 September 2000, A03 (applicant) admitted to having used illegal drugs.  He is suspected of violating the Uniform Code of Military Justice, Article 112a, Wrongful Use or Possession of a Controlled Substance; to wit: mushrooms."

Reference my statement dated 19 September 2000 attached as Document 2.  I admitted to consuming mushrooms on one occasion but did not state nor admit to using any "illegal drugs" or other "controlled substances."  As stated above, mushrooms are not a controlled substance under Article 112a, Wrongful Use, Possession, Etc., of Controlled Substances or 21 United States Code Section 812, Schedules of Controlled Substances.  A copy of 21 United States Code Section 812, Schedules of Controlled Substances is included as Document 3.

2.  The other than honorable discharge was improper and therefore warrants an upgrade to honorable since there is no direct link or evidence that the consumed mushrooms actually contained a controlled substance as listed in Article 112a Wrongful Use, Possession, Etc., of Controlled Substances or 21 United States Code Section 812, Schedules of Controlled Substances.

My statement dated 19 September 2000 (Document 2) does not state or in any way indicate that I had knowledge that the consumed mushrooms contained any type of controlled substance.

In denying my appeal, Commander, Carrier Group Five, in paragraph 4 of his letter to me dated 08 November 2000 (Document 4) drew a nexus between the consumed mushrooms and mushrooms containing a controlled substance by stating that Naval Criminal Investigative Services had scientifically confirmed the presence of psilocybin/psylocin in "similarly marketed mushrooms."  This statement assumes all "similarly marketed mushrooms" contain psilocybin/psylocin.

Contrary to this assumption, note that there are other species of "similarly marketed hallucinogenic mushrooms" readily accessible in Asia which do not contain psilocybin/psylocin, specifically Amanita gemmated, Amanita Muscaria, and Amanita pantherina.  Reference the article written for medicine Journal, June 5, 2001, Volume 2, Number 6, by Dr. D_ G_, Clinical Assistant Professor, Department of emergency medicine, Mount Sinai Medical Center attached as Document 5.  Also note that the effects of both groups of mushrooms are very similar as described in Section 3 of 9 of this article.

Furthermore, there is no physical evidence to suggest that I have ever ingested controlled substances of any kind.  I base this statement on the fact that I have never had urinalysis results, which indicated the presence of any controlled substances.

3.  The other than honorable discharge was improper and therefore warrants an upgrade to honorable since I was not afforded "due process of law" as guaranteed by Amendment V of the Unites States Constitution with respect to the Uniform Code of Military Justice, Article 15, Non-Judicial Punishment proceeding conducted on 27 September 2000 by Commander B_, Commander VAQ 136.

1.  Due Process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controvert, by proof, every material fact which bears on the question of right in the matter involved.  If any question of fact or liability were conclusively presumed against him, this is not due process of law. (Black's Law Dictionary, 6th Edition, page 500)

Even though military justice is different in many ways to civilian justice, the same basic principles and rights exist including the fundamental principle that a person is innocent until proven guilty.  Contrary to this fundamental principle, Commander B_ conclusively presumed that I was guilty prior to convening the Captains Mast on September 27, 2000.  This statement is based on the fact that I was given a separation physical three days prior to Commander B_ convening the Captains Mast.  Attached as Document 6 is an email dated 15 November 2000 from Commander B_ to my father which states in part, "As far as separation physicals, all personnel were given physicals during many days of waiting on whether or not the Japanese were going to retain jurisdiction of these cases.  The admission of guilt left no other recourse than dismissal from the service.  However, at Captain's Mast I asked if they wanted to present any witnesses or evidence on their behalf.  No guilt was found until they were finished presenting their case to me."  Even though Commander B_ states that no guilt was found until after the cases were presented to him, it is apparent from his preceding statement (The admission of guilt left no other recourse than dismissal from the service.) that Commander B_ had made his decision prior to convening the Captains Mast and therefore had already ordered my separation physical.  Note that my statement (Document 2) dated 19 September 2000 states that I had consumed mushrooms on one occasion.  The statement does not make reference to or admit to a wrongful possession or use of any controlled substance listed in Article 112a, Wrongful Use, Possession, Etc., of Controlled Substances or 21 United States Code Section 812, Schedules of Controlled Substances.

Also, I was contemplating reenlistment at the time of this incident since my current enlistment would be complete in May 2002. I had been offered orders to Woodby Island that were waiting for my acceptance pending agreement to reenlist.  However, before the Captains Mast was convened, I was informed that the orders had been canceled.  Again, the outcome of the Captains Mast had already been decided.

Since a decision had already been reached regarding my guilt, all that remained was the formality of the Captains Mast proceeding.  This was a primary reason why I did not provide additional statements, question witnesses, or provide other defense during the Captains Mast proceeding.  Based on the above, it was obvious to me that a guilty decision had already been reached and that providing a defense would be futile and discussing the matter in front of seven other individuals as discussed next could potentially have serious repercussions.

2.  The Captains Mast convened on 27 September 2000 by Commander B_ was held for eight individuals, including myself.  All eight were accused of violation of Article 112a, Wrongful Use or Possession of a Controlled Substance.  To my knowledge, I was the only person being accused of consuming mushrooms.

Nevertheless, being included with seven other individuals in the Captains Mast proceeding significantly reduced my ability to speak freely and provide my defense.  Attached as Document 7 is the Captain Mast Script which includes the names of the sailors assembled in the Captains Mast proceeding.

Additionally, threats were circulating among these same individuals which also impeded my ability to speak freely and provide my defense.  Commander B_ was aware of these threats.  The email dated 20 November 2000 from Commander B_ to my father, attached as Document 8 indicates that Commander B_ was aware of threats being made against some individuals.

If Commander B_, who presided over the 27 September Captains Mast, had not predetermined my guilt, I would have spoken openly in my defense and made the following four arguments which would have significantly changed the outcome of the Captains Mast.

1.  I would have questioned the two individuals listed as witnesses on the Report and Disposition of Offense(s) dated 19 September 2000 (Document 1).  No evidence (statements or other documents) was shown me that AN R_ E. L_ Jr. and AMEAN T_ J_ H_ ever witnessed me purchase and/or consume mushrooms containing a controlled substance.  In fact, attached as Document 9 is Mr. L_'s statement to the NAF Atsugi CID dated 18 September 2000.  As you can see, Mr. L_'s statement does not state nor imply that Mr. L_'s was aware of or ever witnessed me use any controlled substance or consume mushrooms.

2.  I would have made the argument that mushrooms are not a controlled substance prohibited by Article 112a or 21 United States Code 812 (Document 3)

3.  I would have made the argument that there are "similarly marketed mushrooms" readily available in Asia which do not contain a controlled substance, specifically psilocybin/ psylocin. (Reference the article written for emedicine Journal, June 5, 2001, Volume 2, Number 6, by Dr. D_ G_, Clinical Assistant Professor, Department of Emergency Medicine, Mount Sinai Medical Center attached as Document 5.)

4.  I would have made the argument that I have never had urinalysis results which indicated the presence of a controlled substance so there was no evidence to support the charge that I had actually "used" any controlled substances.

4.  The other than honorable discharge was improper and therefore warrants an upgrade to honorable since my appeal dated 04 October 2000 to the Commander, Carrier Group 5 was denied, in part, due to incorrect pertinent facts submitted by the Commanding Officer Electronic Attack Squadron 136.

I appealed Commander B_'s Captains Mast decision to Admiral R_ F_ W_, Carrier Air Wing Five on 04 October 2000 (Document 1 0).  Attached to my appeal was the First Enforcement dated 06 October 2000 submitted by H_ F_ B_, Commanding Officer Electronic Attack Squadron 136 recommending the appeal be denied (Document 11).

The following incorrect pertinent facts were contained in Commander B_'s First Endorsement.

1.  "On 19 September 2000, AOAN (applicant) confessed willingly to the use of hallucinogenic mushrooms (see enclosure 2)." The enclosure referenced in this pertinent fact is the statement that I made to the Command Investigation Division (CID) investigators (Reference Document 2).  As you can see, my statement does not state that I used "hallucinogenic" mushrooms.

2.  "According to 21 United States Code, Section 812, mushrooms are a controlled substance, and therefore use is punishable under the UCMJ, Article 112a." Contrary to this pertinent fact, 21 United States Code, Section 812, does not list mushrooms as a controlled substance (Reference Document 3).  This incorrect pertinent fact is a primary basis for denial as shown in paragraph 2 of the appeal denial from Commander, Carrier Group Five, dated 08 November 2000 (Reference Document 4).  "On 27 September 2000, your Commanding Officer determined at Captain's Mast that you had violated Article 112a of the Uniform Code of Military Justice (UCMJ) by wrongfully using a controlled substance, mushrooms.

3.  "Several witnesses had also indicated him as being a user." The witnesses listed on the Report and Disposition of Offense(s) dated 19 September 2000, are AN R_ E_ L_ Jr. and AMEAN T_ J_ H_.  However, no evidence (statements or other documents) was ever provided to me that these two individuals ever witnessed me purchase and/or consume mushrooms containing a controlled substance.  In fact, attached as Document 9 is Mr. L_'s statement to the NAF Atsugi CID dated 18 September 2000.  As you can see, Mr. L_'s statement does not state nor imply that Mr. L_'s was aware of or ever witnessed me use any controlled substance or consume mushrooms.

Based, at least in part, on these incorrect pertinent facts, my appeal was denied by Admiral R_ F_ W_, Commander Carrier Group Five.  Admiral W_ further justified the denial by stating that the Naval Criminal Investigative Services had scientifically confirmed the presence of psilocybin/psylocin in "similarly marketed mushrooms." Again, this is an assumption that all "similarly marketed mushrooms" contain psilocybin/psylocin, which is an invalid assumption.  Admiral W_ also stated in paragraph 4, "Moreover, your statement and actions suggest that you were aware that these mushrooms contained a controlled substance and were prohibited by military law." This statement is not true.  Nowhere in my signed statement is it stated or otherwise indicated that I had knowledge that the consumed mushrooms contained any type of controlled substance.  Also, note that the effects of the groups of mushrooms which do not contain psilocybn or psilocin are essentially the same.  Refer to Section 3 of 9 of the article written for emedicine Journal, June 5, 2001, Volume 2, Number 6, by Dr. D_ G_, Clinical Assistant Professor, Department of Emergency Medicine, Mount Sinai Medical Center attached as Document 5.

Again, based on the fact that I have never had urinalysis results which indicated the presence of any controlled substances in my system, there is no physical evidence to suggest that I have ever ingested controlled substances of any kind.

5.  The other than honorable discharge was improper and therefore warrants an upgrade to honorable since my statement dated 19 September 2000 was obtained under duress due to a lack of sleep and food and through coercion in direct violation of Article 31, Compulsory Self-incrimination Prohibited.

I worked until 3-4 AM on 19 September 2000 and was awakened by an officer at approximately 8 AM and told that I had 5 minutes to report for a urinalysis.  I was told that I could not eat, drink, talk to anyone, or leave the room.

I was latter interrogated by two CID investigators who told me that I was suspected of possessing and/or using mushrooms and stated that I would be better off to waive my rights and cooperate with the investigation.  I signed the waiver and told the CID agents that I would fully cooperate.  Once the waiver was signed I was interrogated for approximately two hours with the CID agents repeatedly telling me that, "We know you are guilty, admit it." Also, during this two hours I was repeatedly threatened that if I continued to deny the accusation that I would be charged, court-martialed and could receive five years imprisonment under Article 107, False Statements, for lying to the CID investigators.  At 206 PM, approximately 6 hours after having been awakened, I finally agreed to the statement that I purchased and consumed mushrooms on one occasion.  The statement was obtained as a result of very little sleep, no food, and two hours of interrogation, along with the threat of five years imprisonment under Article 107.

Consequently, I was coerced in direct violation of Article 31, Compulsory Self-Incrimination Prohibited, into providing statements of self-incrimination based on the continued threat of five years imprisonment for providing false statements about myself by denying that I consumed mushrooms.

6.  The other than honorable discharge was improper and therefore warrants an upgrade to honorable since my waiver of review by a separation review board (SRB) hearing was not made by free choice but by reason of harassment and retaliation.

Initially, I wanted to request a hearing with the SRB.  However, I was told that due to the number of personnel involved that it would take between three and four months before the command could provide me with legal representation and then convene an SRB.  This amount of time is unreasonable under the goal established by the Secretary of the Navy and delineated in MILPERSMAN 1910.  Even though the Captains Mast took place on September 27, 2000, it was around Christmas before I was asked if I wanted to request an SRB.

Subsequent to the Captains Mast I was harassed and given extra duties to discourage the full utilization of the provisions within the Uniform Code of Military Justice.  Described below are just two of the many examples of the harassment and extra duties.

Since my appeal of the 27 September 2000, Captains Mast, had not been acted on within five working days, I requested my Officer in Charge Ensign B_ to put a hold on my restricted status in accordance with Section V7D of the 1998 Edition of the Manual of Court Martial pending the outcome of the appeal.  Mr. B_ denied the request.  Shortly thereafter, the restricted personnel, including myself, were told by the Leading Petty Officer, AT1 R_, that we were required to work on the upcoming Saturday 14 October 2000.  However, AT1 R_ said the reason was that the work had to be completed and was not to be considered extra duty.  As it turned out however, only the restricted personnel actually performed work on that day.  Other members of the command including AT1 R_ were not required to work.  The timing of the work was more than just a coincidence and was surely retaliation.  Note that Ensign B_ was later directed, I assume by a command legal officer, to put my restricted status on hold pending the outcome of my appeal. (Attached as Document 12 are copies of both the disapproved special request dated 13 October 2000 and the approved special request dated 16 October 2000.)

Also, at a subsequent muster of the restricted personnel, AT1 R_ made a statement that base personnel were working to get these restricted individuals processed out in a timely manner but that there were personnel filing appeals which was causing the situation to drag out.  AT1 R_ was attempting to turn the other restricted personnel against the two who had filed appeals, including myself.  This was a very inappropriate and potentially dangerous topic to discuss at the muster, especially with the command being aware of threats having been made by some personnel affected by this CID investigation.

My father provided this and other information to Commander B_ and his superiors regarding harassment and extra duties.  Commander B_ would always respond that there were military personnel in harm way all over the world who were working 7 days a week and that he would like to give them all a day off, etc.  Note that I have also worked those long hours while deployed on two Southern Watch cruises while in harms way.  Nevertheless, at this point, I was sure the harassment and extra duty was being used to deter my full utilization of the Uniform Code of Military Justice.  Therefore, I felt that it was in my best interest to accept the Captains Mast punishment rather than endure several more months of similar treatment.  I was later told that a couple of the individuals that were able to wait for the SRB were separated with general under honorable conditions discharges.

7.  The other than honorable discharge was inequitable based on the procedural irregularities associated with the handling of this matter and my previous service as discussed below.  Therefore, I request relief based on the guidelines of Department of Defense Directive 1332.28 and an upgrade to honorable.

I was honorably discharged from the US Army on November 8, 1996 after completion of active duty basic training and a sixteen week law enforcement course (Military Police).  During this period I was awarded the Army Service Ribbon. (DD214 is attached as Document 13.)

I was released from the US Army National Guard under honorable conditions to enlist into the US Navy. (Report of Separation and Record of Service is attached as Document 14.)

During the period of US Navy enlistment, I was awarded two Navy Unit Commendation Medals, a good conduct medal for the period ending 27 May 2000, and an Expert Pistol Shot Medal.  I completed two Southern Watch cruises, one aboard the USS Independence and one aboard the USS Kitty Hawk for which I have been awarded Expeditionary Medals and Sea Service Deployment Ribbons.  NAVPERS Form 1070/604 is attached as Document 15.  Also, prior to this incident I had received two 4.0 evaluations.

Document 16 is a copy of a Command Letter of Commendation for the period of March to August 1999, while deployed to the Arabian Gulf.

Document 17 is a copy of a Flag Letter of Commendation for the period of 29 June to 6 July, 1999, while deployed to Prince Sultan Air Base, Saudi Arabia.

I qualified as an Enlisted Aviation Warfare Specialist on 07 December 1999 (Document 18).

While assigned to VAQ 136, 1 was trained and held the position of Collateral Duty Inspector.  Responsibilities of this position often required me to inspect and approve/reject the work of higher ranking naval personnel.

Since my separation from the US Navy, I attended a 154 hour commercial truck operator training program which resulted in my obtaining a Class A Commercial Drivers License.  As can be seen on the attached Commercial Driver Institute, Inc.  Official Transcript, the final test grades I received were well above average (Reference Document 19.  Also, my instructors rated my attitude and appearance as Good (4 out a possible 5).  Even with the high final grades and good attitude and appearance rating, I had an extremely difficult time finding a job.  I was turned down by at least 15-20 major freight companies due to the under other than honorable condition discharge.  Finally, I was hired by a smaller company located approximately 100 miles from my home because the owner of the company and I had both completed the US Army military police training.

Documentation

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

Report and Disposition of Offense(s) and Preliminary Inquiry Report both dated 19 September 2000
Military Suspect's Acknowledgement and Waiver of Rights and Voluntary Statement of (applicant's) dated 19 September 2000
United States Code, Title 21, Section 812, Schedules of controlled substances
Memorandum from R_ F_ W_, Commander, Carrier Group Five to AOAN (applicant) dated 08 November 2000
emedicine Journal Article, June 5, 2001, Volume 2, Number 6 authored by D_ G_, MD, Clinical Assistant Professor, Department of Emergency Medicine, Mount Sinai Medical Center
Email dated November 15, 2000
Captains Mast Script
Email dated November 20, 2000
Military Suspect's Acknowledgement and Waiver of Rights and Voluntary Statement of AN R_ E_ L_ J_ dated 18 September 2000
Mast/Office Hours Appeal from AOAN (applicant) to Captain M_, dated 04 October 2000
First Endorsement dated 06 October 2000 on AOAN (applicant) letter of 04 October 2000
Special Requests dated 13 October 2000 and 16 October 2000 to stay punishment pending action on my Captains Mast appeal
DD214, Certificate of Release or Discharge from Active Duty, dated 08 November 1996
Report of Separation and Record of Service from the Army National Guard dated 27 May 1997
NAVPERS Form 1070/604
Command Letter of Commendation
Flag Letter of Commendation
Enlisted Aviation Warfare Specialist Certificate
Commercial Driver Institute, Inc.  Official Transcript
Letter dated July 23, 2001 from T_ E_ D_, Special Assistant, Congressional Liaison Office to The Honorable J_ S_, United States Senator
Letter (with all attachments) to Senator J_ S_ from (applicant) dated June 14, 2001
Copy of DD Form 214
Copy of Evaluation Report and Counseling Record dated August 28, 1998, June 16, 1999 and June 15, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive:   ARNG		960528 - 960708	HON
Active:     USA/ARNG	960709 – 961108	RELACDUTRA
Inactive:   ARNG		961109 – 970527	HON

Period of Service Under Review:

Date of Enlistment:  970528		Date of Discharge:  010109

Length of Service (years, months, days):

	Active:    03  07  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  4.67 (3)	Behavior:  4.00 (3)		OTA:  3.94

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR (2), NUC (2), NER, N/MCOSR, GCM, EAWS

Days of Unauthorized Absence:  None

*Marks obtained from supporting documents provided by the applicant.

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:

000919:	Applicant's voluntary statement found in case file.

000927:	NJP for violation of UCMJ, Article 112A: Wrongful use or possession of a controlled substance, to wit: mushrooms on 19Sep00.
	Award:  Forfeiture of $667 per month for 2 months, restriction for 60 days, reduction to AOAN.  Forfeiture for 1 month and restriction for 15 days suspended.  Appealed: 001004.  Appeal denied 001108.

001207:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): AOAN (applicant) has admitted to the use of hallucinogenic mushrooms.  He has waived his right for an Administrative Board.  Therefore, I am recommending him for separation with an other than honorable discharge.

001214:	Commander, Carrier Group FIVE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010109 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).

Issues 1 thru 6:  The Board disagrees with the applicant’s assertion that his other than honorable discharge was improper and inequitable.  The NDRB, under its responsibility to examine the propriety and equity of an applicant’s discharge, will change the reason for discharge if such a change is warranted.  There was no evidence of impropriety, inequity or procedural irregularities in the applicant’s discharge.  The applicant’s summary of service clearly documents that drug abuse (use) was the reason the applicant was discharged.  The applicant acknowledged and waived his rights, and, in a signed and sworn statement, willingly admitted to the use of mushrooms.  Through the command indoctrination and drug awareness program, the applicant was responsible for knowing that certain types of mushrooms, lawful under Japanese law and available for purchase on the local Japanese economy, had been determined by the Naval Criminal Investigative Service (NCIS) to contain psilocybin/psylocin, a Schedule I controlled substance, listed in 21 U. S. C. Section 812 and prohibited by Article 112a, UCMJ.  The applicant’s own confession of purchasing and ingesting mushrooms was sufficient evidence for the command authority to charge the applicant with violation of UCMJ, Article 112a:  Wrongful use or possession of a controlled substance, to wit: mushrooms on 19 September 2000.  The punishment awarded at NJP was not the maximum allowed and the Board unanimously agreed that the command authority acted properly within his authority and discretion.  The applicant was afforded the appropriate due process at every opportunity.  Prior to and subsequent to his confession, the applicant consistently waived his rights; he declined the opportunity to call witnesses or present additional evidence at his NJP; and ultimately waived the right to an Administrative Discharge Board.  The applicant was provided with a copy of the charge sheet prior to his NJP proceeding.  He did not contest the nature of the charge.  The fact that the charge failed to mention the mushrooms were a controlled substance containing psilocybin/psylocin does not void the fact the applicant knowingly used a controlled substance.  Drug abuse (use) warrants processing for separation, normally under other than honorable conditions.  Members who are discharged for similar offenses but which result in a different characterization of service do not necessarily serve as precedent for future cases.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure of that expected of a sailor.  The receipt of commendatory awards and favorable performance evaluations during the applicant’s enlistment do not guarantee him an honorable discharge.  The Board agrees, that the applicant had good performance evaluations, but his performance prior to his NJP does not mitigate his use of a controlled substance.  The positive aspects of the applicant’s military record do not outweigh the consequences of his misconduct.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  The applicant stated he received an honorable discharge from the Army and was released from the U.S. Army National Guard under honorable conditions to enlist in the Navy.  The Board is authorized to examine only the enlistment during which the other than honorable discharge was awarded.  Honorable prior service is not cause for relief.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the applicant’s discharge to an honorable characterization, or change of reason for separation to Release from Active Duty.  Relief denied.

Issue 7:  The following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  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.  The applicant should produce evidence of continuing educational pursuits, a verifiable 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 be 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.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  Representation at a personal hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organizations.

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