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

 ex-SA, USN
Docket No. ND02-00104

Applicant’s Request

The application for discharge review, received 011019, requested that the characterization of service on the discharge be changed to honorable.  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 020619.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board did determine that the applicant’s DD-214 inaccurately lists the characterization of service as under Other Than Honorable conditions.  The Board’s vote was unanimous that the character of service shall be administratively corrected to reflect the characterization of service directed by the applicant’s Commanding Officer: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620 but the characterization of service shall not be upgraded to "honorable", as requested.

The NDRB did note an administrative error on the original DD Form 214.  Block 25, Separation Authority should read: “NAVMILPERSMAN, Article 1910-146” vice “MILPERSMAN 1910-140”, Block 26, Separation Code should read: “HKK” vice “HKA”, Block 28, Narrative Reason for Separation should read:  “MISCONDUCT” vice “PATTERN OF MISCONDUCT-DRUG ABUSE”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I believe that my discharge was inequitable because although I did make a mistake that I truly regret I am asking a chance to prove myself and dedicate myself to serve my country.  I feel that I have learned from my mistakes and honestly feel that I can be an honest service man.

Documentation

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

Letter from applicant to congressman dated August 22, 2001
Job/character reference dated August 21, 2001
Copy of certificate dated November 16, 2000
Copy of commendation for June 12, 2000 to June 26, 2000
Copy of commendation for July 17, 2000 to July 21, 2000
Copy of commendation for October 12, 2000
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	980519 - 980527	COG

Period of Service Under Review:

Date of Enlistment:  980528		Date of Discharge:  010416

Length of Service (years, months, days):

	Active:    02  10  19
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  2.00 (4)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), AFEM

Days of Unauthorized Absence:  15

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:

991012:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0715, 17Sep99 to 1728, 2Oct99 (15 days/surrendered), violation of UCMJ, Article 87 (3 specs): Missing ship's movement on 17Sep99, 24Sep99, 1Oct99.
	Award: Forfeiture of $537.90 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  Reduction suspended for 6 months.  No indication of appeal in the record.

991012:	Retention Warning:  Advised of deficiency (Unauthorized absence and missing ship's movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000821:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery on 19Aug00.
	Award: Forfeiture of $630 per month for 2 months, restriction and extra duty for 45 days, revoked advancement to E-4.  No indication of appeal in the record.

000821:	Retention Warning:  Advised of deficiency (Assault consummated by a battery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010301:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine.
	Award: Forfeiture of $653.55 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  No indication of appeal in the record.

010319:	NAVDRUGLAB, San Diego, reported applicant's urine sample, received 010313, tested positive for cocaine.

010330:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to drug abuse.

010330:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010620:	Commanding officer directed discharge general (under 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 010416 with a directed characterization of service as general (under 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 not proper but was equitable (C and D).

Issue 1.  The Board determined that the applicant was properly processed for separation by the applicant’s Commanding Officer (CO).  The applicant’s service records shows that the characterization of service directed by the applicant’s CO was Under Honorable Conditions (General).  Inexplicably, the applicant’s DD-214 states the applicant was discharged Under Other Than Honorable Conditions.  The applicant’s DD-214 should be corrected to reflect a characterization of service of Under Honorable Conditions (General).

A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial (to include use of illegal drugs) on three occasions and adverse counseling entries on other occasions.  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 naval service, and falls short of that required for an honorable characterization of service.  Partial relief, in the way of an administrative correction of the DD Form 214 to reflect "General Under Honorable Conditions" is granted; relief for upgrade to "honorable" is denied .

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. 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.  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 31, dated 20 Feb 01, effective 12 Feb 2001 until Present, 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