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

 ex-EN3, USN
Docket No. ND02-00072

Applicant’s Request

The application for discharge review, received 011012, 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 020604.  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.  R/R change of discharge based on the fact that on Aug 25, 1999 my son was born.  He was born with twelve fingers and eleven toes.  He also had complication at his birth to be he almost passed away several times and at that point I was having problems in my marriage.  Me and my wife at that time had sleeked help from my son at many different doctors to try to figure out what caused him to be born the way he was and with as many problems.  We tried different doctors in the tidewater area and the couldn't tell us nothing or what had caused him to be the way he was, and by this time I had grown frustrated and didn't know who else to turn to or talk to.  I had thought about suicide to ease my pain and my command had helped me by going to counseling and that’s when I turned to using drugs/marijuana and that’s why I received the discharge that I did after going thru therapy for this.  I realized that what I did was wrong, but by this time I had started my restriction and that’s when I started to have seizures over the past month or so while on restriction I had one seizure but as soon as I got of restriction I had several more seizures that’s why I'm asking for an upgrade I know that stress and marital problems shouldn't have played in the wrong decision that I made and I'm truly sorry for it cause it ended my carrier in something that I enjoyed dong I realize that talking solves problems which I regret ever day I had people who wanted to help me but all I could think about was my son's problems and it had gotten the best of me, which I know my command, would have helped me thru but i felt that the only person I had was my self, but I was wrong.  So, I ask the board to please review my record and to see I was an good access to the Navy before I had my son while I was in the military I was a hard charger before my seizure so I ask the board to please help me so that I can move one with my life I have learned a huge lesson from all of this I do have people I can talk to and that are willing to help I've been drug free for one year now, I and I'm not turning back to that stuff.  So I ask you the board to please upgrade my discharge so that i can move on with my life and do the things that I do love to do and my Seizure has caused a lot of changes in my life to I have been trying to do the right things with my life.  I am no longer married because my wife didn't want to be with a person that had used drugs so I've lost enough I'm asking you to please give me part of my life back.  Sincerely
Documentation

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

Copies of Evaluation Report & Counseling Records dated May 12, 1999, January 14, 1998, July 10, 1997, December 22, 1995, June 16, 1995, January 31, 1995, January 28, 1995,
Copy of letter of appreciation dated December 7, 1995
Copy of medical record pages from Sentara Bayside Hospital and Medical Center, Portsmouth, VA
PART II - SUMMARY OF SERVICE

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

	Active:   USN			940721 - 960806	HON
	Inactive: USNR (DEP)	940512 - 940720	COG

Period of Service Under Review:

Date of Enlistment:  960807			Date of Discharge:  000608

Length of Service (years, months, days):

	Active:    03  10  02
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  3.00 (4)		OTA:  3.13

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER, MUC, GCM

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:

991206:	NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample, received 991124, tested positive for THC.

000105:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 22Nov99, to wit: marijuana.
	Award: Forfeiture of $600 per month for 2 months, restriction and extra duty for 45 days, reduction to ENSN.  Punishment suspended for 6 months.  No indication of appeal in the record.

000109:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000109:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000314:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000504:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

000523:	Commander, Naval Surface Force, U.S. Atlantic Fleet 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 000608 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 applicant requested a change in the discharge due to matters of mitigation, his son’s birth defects and personal medical problems.  The Board sympathizes with applicant concerning his personal problems.  However, the NDRB is chartered to review cases involving a request to change the characterization or reason for discharge of former service members, for propriety and equity.  The applicant’s personal problems do not mitigate his misconduct.  The applicant was found guilty at NJP for violation of UCMJ, Article 112a (wrongful use of illegal drugs), which requires mandatory processing for separation, normally under other Than Honorable conditions.  The applicant was held accountable for his misconduct.  The Board determined the discharge was proper and equitable.  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