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

 ex-AEAN, USN
Docket No. ND02-00381

Applicant’s Request

The application for discharge review, received 020214, requested that the characterization of service on the discharge be changed to entry level separation.  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 021022.  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.  My discharge was inequitable because it was based solely on a isolated incident.  I had 9 previous uranalysis prior to the one they detected THC in my urine.  It was a one time thing and I truly regret ever doing it. My Captain recommended me to be retained in VS-27.  But to no avail.  I feel I was an outstanding sailor with a 3.8 eval average, 1 good conduct medal, Navy unit commendation, meritorious unit commendation was in VA-46 where our squadron won two (2) Naval Battle E ribbons Also was in Desert Storm where our squadron had a 99.9% sortie rate and got the liberation of Kuwait medal.  As an aviation Electrician I finish my "A" School with an 86% grade point average.  2 yrs of 5-3A "O" Level maintenance went to Aircraft Aerial Refueling stores "O" Level maintenance school for 5 months, which became my forte.  Was well liked in all my squadrons by my fellow sailors.  I had planned to make the Navy a 20-year or more careers.  I feel it was a mistake and a great loss to the Navy by discharging me.  I also feel that the least the government should do for me is upgrade my discharge.  After all the dedicated service I gave to the United States Government.  Since my discharge I have sought help in drug counseling and held jobs in painting from the time of my discharge until Feb 2000.  Then I took a job in a restaurant as soup chef for a year and half.  I have since left that job for a better one with Allied Fastener & Tool.  Repairing tools putting to use my electrical knowledge that the Navy taught me.  I also attend almost nightly bible classes at J.A.Y. ministries as well as church.  I am a productive member of society and a God fearing person.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880220 - 880419	COG
	Active:   USN			880420 - 920219	HON

Period of Service Under Review:

Date of Enlistment:  920220		Date of Discharge:  940920

Length of Service (years, months, days):

	Active:    02  07  01
	Inactive:  None

Age at Entry:  29			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  AE3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.65 (4)	Behavior:  3.65 (4)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, MUC (2), NER (2), GCM, NDSM, SASM (3), SSDR, KLM

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 3630620.

Chronological Listing of Significant Service Events:

940802:	NAVDRUGLAB, Jacksonville, FL reports Applicant's urine sample, received 940727, tested positive for THC.

940804:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 25 Jul 94 (a schedule II controlled substance) while in or around the City of Jacksonville, FL, to wit: positive result on a command urinalysis inspection.
	Award: Forfeiture of $552 per month for 2 months, restriction for 20 days, extra duty for 45 days, reduction to AEAN.  No indication of appeal in the record.

940811:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive result on a command urinalysis inspection.

940811:	Applicant advised of his rights and having elected not to consult 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.

940811:	Commanding Officer, Sea Control Squadron TWO SEVEN recommended retention. Commanding Officer’s comments (verbatim): Airman (Applicant) is a conscientious sailor who prior to this incident had an impeccable record.  He clearly recognizes that he has made a mistake and is eager to rectify it.  I believe that this is an isolated incident and is not indicative of a larger problem nor a pattern of misconduct.  In this regard, I intend to remand him to substance abuse training.  Based on Airman (Applicant's) proven record of performance and genuine desire to correct this infraction, I recommend that he be retained in the Naval Service.

940908:	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 940920 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:  Drug abuse (use) warranted processing for separation under other than honorable conditions.  The Applicant was found to have used illegal drugs.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disregard for the Navy’s Zero Tolerance Policy and his disobedience of the orders and directives, which regulate good order and discipline in the Naval Service.  By regulation, only service members discharged within the first 180 days of initial enlistment are given a characterization of service of Entry Level Separation or Uncharacterized.  The Applicant’s service during the enlistment period 920220-940920 is equitably characterized as being performed under other than honorable conditions.  Relief not warranted.

Issue 2:  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 the Applicant is drug-free, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The Applicant did not provide any documentation to support his request for post-service clemency.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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