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

ex-FA, USN
Docket No. ND02-00353

Applicant’s Request

The application for discharge review, received 020204, 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 020912.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Throughout the years I have matured and would like my discharge to be upgraded.  I was very immature and have paid my debt to society.  Please consider granting me an upgrade.

Documentation

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

Copy of DD Form 214 (2 copies)
Two pages from applicant's service record
Copy of first and current pay stub from Pizza Hut
Letter from Norfolk State University dated April 15, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	940729 - 950613	COG

Period of Service Under Review:

Date of Enlistment:  950614			Date of Discharge:  970307

Length of Service (years, months, days):

	Active:    01  08  24
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  80

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  9

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

960523:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence for 2 hours and 15 minutes and 25 minutes.
	Award: Forfeiture of $204 per month for 1 month, restriction and extra duty for 14 days, reduction to FR.  Appealed 960526.  Appeal approved 960702 - Reduction suspended for 6 months.

961212:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 21 Oct 96 to 0631, 30 Oct 96 (9 days/surrendered), violation of UCMJ, Article 92: Fail to obey a lawful regulation, to wit: Article 1162, U.S. Navy regulations, by wrongfully introducing and possession of alcoholic beverages on board USS DWIGHT D. EISENHOWER, violation of UCMJ, Article 134: Underage drinking.
	Award: Forfeiture of $437 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

970116:	NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty, to wit: restricted personnel muster, 8 incidents, violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit; marijuana.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

970116:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by all serious offenses in your current enlistment and misconduct due to drug abuse as evidenced by all drug abuse incidents in your current enlistment.

970204:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970219:	Commanding Officer, USS DWIGHT D. EISENHOWER (CVN 69) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

970221:	Commander, Cruiser-Destroyer Group EIGHT 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 970307 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 found that the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity and youth was a factor that contributed to his actions, the award of non-judicial punishment (NJP) on three occasions reflects the Applicant’s willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  In addition, the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  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 discharge was proper and equitable.  Relief denied.

Issue 2:  The NDRB is authorized to consider outstanding post-service conduct, 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.  However, there is no law or regulation that 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.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the Applicant’s service record.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the Applicant's record of community service, employment, conduct, educational achievements, and family relationships. 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, 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 documentation.  The Applicant did not provide sufficient post service documentation to warrant an upgrade.  Relief denied.

The Applicant remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  The Applicant should provide additional post service documentation at this time.  Representation at a personal appearance hearing is recommended, but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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