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

ex-OSSN, USN
Docket No. ND02-00225

Applicant’s Request

The application for discharge review, received 020109, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant listed Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

a.  My overall conduct and performance throughout my service was outstanding and my discharge ought not reflect an isolated incident.

b.  Clemency is warranted because it is fundamentally unfair for me to continue to suffer the adverse consequences of an other than honorable discharge.

3.  (VFW's Issue)  We ask that after your careful review of this case that you grant clemency and change Mr. D_ discharge.  He has been a productive member of society and a fine husband and father. 

Documentation

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

Letter from Applicant
Reference Letter from E_ M_ dtd August 18, 1999
Reference Letter from Rev. T_ F. M_
Reference Letter from Brother dtd October, 13, 1999
Letter of Recommendation from C. K_ Y. Assistant Professor, Humanties
Employment Reference Letter dtd August 20, 1999
Personal Statement from Applicant (5 pgs)  

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	881003 - 881106	COG

Period of Service Under Review:

Date of Enlistment:  881107		Date of Discharge:  920731

Length of Service (years, months, days):

	Active:    03  08  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.84 (5)	Behavior:  3.64 (5)		OTA:  3.92

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, AFEM

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:
 
881108:	Applicant briefed upon and certified understanding of Navy's policy concerning illegal use of drugs.

881130:	DAAR indicates applicant tested positive for THC on Entry Level urinalysis.

920507:	NAVDRUGLAB NORFLOK VA urinalysis report indicates applicant tested positive for THC.

920512:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award:  Restriction for 30 days, reduction to E-3.  No indication of appeal in the record.

920513:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all punishment under the UCMJ in your current enlistment.

920520:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920612:	An Administrative Discharge Board, based upon 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.

920615:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

920718:	BUPERS 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 920731 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 disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge.  The receipt of favorable performance evaluations during the applicant’s tour does not guarantee him an honorable discharge.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  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.  A characterization of service of under other than honorable conditions is warranted when a member’s conduct constitutes a significant departure of that expected of a sailor.  The applicant’s conduct, which forms the primary basis for determining the character of service, is marred by the award of non-judicial punishment (NJP), for wrongful use of a controlled substance, marijuana.  The applicant’s misconduct reflects his willful disregard for the orders and directives that regulate good order and discipline in the naval service.  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.  The applicant’s conduct falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.

Issue 2:  The applicant asserts he is now a productive member of society and requests he not be made to suffer the adverse consequences of an other than honorable discharge.  He is concerned that his discharge may adversely affect his professional licensing and future employability.  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 naval 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documents that should have been 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.  Relief denied.

The applicant 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.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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