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

 ex-ATAN, USNR(TAR)
Docket No. ND02-00286

Applicant’s Request

The application for discharge review, received 020122, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 021029.  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 at the time of issue.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Copy of DD Form 214
Copy of previous DD Form 214
Two pages from decisional document (pages 7 and 8)
Statement from Applicant
Picture of Applicant
Newspaper article
Character reference dated December 8, 1998
Character reference dated December 7, 1998
Recommendation letter dated November 9, 1990
Character reference dated November 23, 1998
Newspaper article dated March 1, 1996
Character reference dated March 23, 2001
Character reference dated June 4, 2001
Character reference from Principal, West Middle School
Character reference from Assistant Principal, West Middle School dated March 5, 2001
Character reference dated March 7, 2001
Character reference dated March 7, 2001
Character reference dated March 7, 2001
Newspaper article dated February 23, 2001
Newspaper article dated May 25, 2001
Character reference dated October 10, 2000
Character reference dated February 7, 2001
Picture of Applicant
Copy of certificate dated November 2001
Character reference dated January 17, 2002
Character reference dated January 17, 2002
Copy of certificate of appreciation dated May 10, 2002
Unreadable flyer
Flyer re: G.R.E.A.T (Gang Resistance Education and Training)
Character reference from D_ L_
Character reference from J_ P_
Character reference from P_ A. W_
Character reference from Pastor D_ L. W_

PART II - SUMMARY OF SERVICE

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

	Active:   USNR		820617 - 900216	HON
	Inactive: USNR (DEP)	810618 - 820616	COG
		   USNR		900316 - 900603	COG

Period of Service Under Review:

Date of Enlistment:  900604		Date of Discharge:  940527

Length of Service (years, months, days):

	Active:    03  11  24
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rate:  AT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.36 (5)	Behavior:  3.28 (5)		OTA:  3.72

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC (3), SSDR (4), OSR, NDSM, SASM with Bronze Star, BEA, GCM (2), EAWS, NUC, AFOUA, MSM

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 3630600.

Chronological Listing of Significant Service Events:

931101:	NAVDRUGLAB, San Diego, CA reported Applicant's urine sample, received 931025, tested positive for methamphetamine.

931218:	Drug and Alcohol Abuse Report: Amphetamines abuse.  Abuse denied.  Random urinalysis 25Oct93.  Commanding Officer recommended separation.  Comments:  This is member's first incident.  Member has been TAD since being identified and shows no potential for further naval service.  Commanding Officer’s determination is to process member for separation.  Note:  Blocks 14 thru 20 have been left blank intentionally.  A medical screening was not possible due to member being TAD since incident.

940225:	NAVDRUGLAB, San Diego, CA reported Applicant's urine sample, received 940217, tested positive for amphetamine/methamphetamine.

940304:	Report and Disposition of Offense(s): Violation of UCMJ, Article 92 (2 specs): (1) Failed to submit a urine sample for random urinalysis on 22Oct93, (2) Failed to report for command sweep urinalysis testing by 0800, 16Feb94; Article 107: False statement on 5Feb94, to wit: late entry to official record; Article 128: Assault Aviation Machinist's Mate on 3Mar94; Article 86 (9 specs): (1) Absence from appointed place of duty on 0700 - 0800, 14Sep93, (2) Absence from appointed place of duty on 0730 - 0800, 15Sep93, (3) Absence from appointed place of duty on 1130, 30Sep93 - 0830, 1Oct93, (4) Absence from appointed place of duty on 0700 - 0800, 14Oct93, (5) Absence from appointed place of duty on 0730 - 0800 15Oct93, (6) Absence from appointed place of duty on 0915 - 1115, 21Oct93, (7) Absence from appointed place of duty on 0700 - 0950, 25Oct93, (8) Failure to go at the prescribed time to appointed place of duty on 0700, 16Feb94, to wit: morning muster, (9) Failure to go at the prescribed time to appointed place of duty on 0700, 5Feb94, to wit: BEQ fire watch.

940309:	Commanding Officer's nonjudicial punishment awarded this date.  No further information found in service record. 

940421:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940421:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

940503:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

940512:	Drug and Alcohol Abuse Report: Amphetamines abuse.  Abuse denied.  Random urinalysis 17Feb94.  Medical officer recommended separation.  Physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: Member has stated that he intentionally placed amphetamines in test sample due to his desire to terminate military service.  Member has been TAD or on leave since his second incident.  Commanding Officer's determination is to process member for separation as he shows no potential for further naval service.

940517:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990216:	NDRB documentary record review Docket Number ND98-00648 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940527 under other than honorable conditions for misconduct due to the commission of a serious offense (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’s discharge characterization accurately reflects his service to his country.  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.  In addition to the documentation of community service provided, evidence of continuing educational pursuits, certification of non-involvement with civil authorities and credible evidence that the Applicant is drug free, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Board determined that the Applicant’s evidence of post-service conduct did not mitigate the misconduct for which he was discharged.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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 "afls14.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