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

 ex-ATAR, USN
Docket No. ND02-00320

Applicant’s Request

The application for discharge review, received 020128, 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 Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant 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 020829.  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 discharge was inequitable because it was based on:
a.  one urine test- was refused request to re-do by the jag officer & request for polygraph test was refused.

b.  my perfect service record and test results in all navy training.

c.  my perfect 9 months service record demonstrating my honor, courage, and commitment, and love for the U.S. Navy.

d.  "certain minor conflicts appear in the evidence" per. preliminary investigation report, but was ignored by investigating officer.

e.  a copy of actual proceedings (captains mast) was not given to me after the proceedings or even later Ref- UCMJ-854 Article-54-d

f.  only was interviewed by jag once very briefly-would only chance to stay in, was to throw myself on the mercy of the captains mast and ask for leniency " or probably would spend time" *bad advice- wonder who he really represented?

g.  it is a shame for the navy to waste all my schooling.  Let me serve.

2. Post Service Conduct:

a.  1 full semester at Joliet Jr. College

b.  Devry Institute of Technology- Top of class

c.  worked part time jobs to help with school expenses (35hrs.  Per week)

d.  teach karate to kids at Lions Tae Kwon Do.

e.  volunteer church activities with youth groups.

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on July 16, 2002 and the following comments are hereby submitted:  The applicant had no known abusive drug use prior to service and has shown no post service postive drug screening.  We see no reason why he would suddently become a drug abuser with less than a year in service.  He has provided scientific evidence to show how common false positive drug abuse screening is, especially of note, is Dr. J_ W_ H_, M.D article on Urine Trouble.  The applicant even offered to take lie detector test to support his innocent which was not given.  There is no evidence of clear abuse of authority per SECNAVINST 5420.174C, par 9.3 (2) 9b).  The applicant has excellent post service in a very short period time.  We fully agree with his contention that his discharge be upgraded.
We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for changing his discharge to honorable.

Documentation

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

Affidavit from applicant dated September 4, 2001
Note concerning drug testing dated September 1, 1999 and December 5, 2000
Copy of donor form dated April 26, 2001
Two pages from Internet printed October 9, 2001
Copy of front cover of Ur-ine Trouble book and pages 56, 57, 60 and 61 from that book
Page 101 from  Substances Causing Positive Drug Tests 
Job/character reference dated July 2, 2001
Character reference dated October 2000
Job reference from Apple Bee's, undated
Copy of certificate of award dated August 5, 2001
Copy of summary of courses from the Navy dated March 16, 2001
Copy of Devry tests scores
Copy of certificate of Dan grade registered in the Kukkiwon dated December 5,1998
Copy of picture of applicant
Copy of DD Form 214
Six pages from applicant's service record, not previously available to the board
Page printed from Internet dated October 9, 2001 (page 26 of 27)
Letter from President B_ dated April 2001
Letter from Vice President C_ dated September 28, 2001
Letter from applicant's father dated September 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	991211 - 000126	COG

Period of Service Under Review:

Date of Enlistment:  000127		Date of Discharge:  001109

Length of Service (years, months, days):

	Active:    00  09  13
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  72

Highest Rate:  ATAR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

001030:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance on 10 Oct 00.
	Award: Forfeiture of $465.15 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.  [Extracted from Commanding Officer's letter dated 1 Nov 00.]
	Note:  NJP proceedings not available to the Board.

001031:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

001103:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

001101:	Commanding Officer, Patrol Squadron 47 recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

001101:	Commander, Patrol and Reconnaissance Force, Pacific 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 001109 with a discharge characterization of 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’s claim that his discharge was inequitable is without merit.  Drug abuse (use) warranted processing for separation, normally under other than honorable conditions.  There is no evidence in the official record, nor did the Applicant provide any substantial documentation to prove that there was any inequity or impropriety in his discharge.  The official record does not include any written statement by the Applicant regarding his innocence, at the time, and he officially waived all rights to an Administrative Board as well as legal counsel.  The Applicant served for just over 9 months, there are no performance marks recorded, and the Applicant’s successful completion of Navy basic and technical training does not mitigate his use of illegal drugs.  The discharge was proper and equitable.  Relief denied.

Concerning the Applicant’s request to let him serve, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

Issue 2:  The Applicant requests clemency for post-service conduct.  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that he is drug free, are examples of verifiable documents that should have been provided to receive consideration for relief, based upon post-service conduct.  Although impressed with the Applicant’s efforts at continuing his education and his work with children, the Board does not consider these accomplishments to be of sufficient nature to warrant an upgrade to his discharge.  Relief denied.

The Applicant is reminded 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.  Representation at a personal appearance hearing is 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