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

 ex-HTFN, USN
Docket No. ND02-00428

Applicant’s Request

The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in Washington, D. C. area.  The Applicant requested a documentary. 

Decision

A documentary discharge review 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.  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

1.  I was married to an ungod like person.  I only did what I thought she wanted me to do in order to save my marriage.  I was completely wrong.  I would have completed my military career with honor.  I was wrong.  Please change my OTH to General under honorable conditions.  May God bless.  Thank you.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			741101 - 771205	HON
		   USN			771206 - 840422	HON
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  840423		Date of Discharge:  870828

Length of Service (years, months, days):

	Active:    03  04  06
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  12			AFQT:  60

Highest Rate:  HT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.05 (7)	Behavior:  3.08 (7)		OTA:  3.08

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(1G*&2B*), NDSM, NEM

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:

840423:	Reenlisted onboard USS OBANNON (DD-987) for 6 years.

861006:	Retention Warning:  Advised of deficiency (Inability to retain control of personal affairs, causing undue administrative burden on this command), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870208:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 86, absent without leave 870121), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870417:	NJP for violation of UCMJ, Article 86: Going from place of duty.
	Award:  Forfeiture of $300.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 10 days, reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

870423:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 86, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870630:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 870624, tested positive for [Amphetamines/Methamphetamine].

870709:	Punishment of RIR to HT3 and forfeiture of $300.00 pay per month for 1 month suspended at CO's NJP of 870318 vacated due to continued misconduct.
  
870709:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (Methamphetamine).
	Award:  Forfeiture of $437.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

870723:	NJP for violation of UCMJ, Article 86: Absence from appointed place of duty, violation of UCMJ, Article 90: Willful disobedience of a Superior Commissioned Officer.
	Award:  Restriction and extra duty for 14 days to the limits of USS FANNING (FF-1076), San Diego, CA (continuously following previous NJP action.  No indication of appeal in the record.

870724:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 870717, tested positive for [Amphetamines/Methamphetamine].

870807:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of unsatisfactory performance; misconduct due to pattern of misconduct, and misconduct due to drug abuse.

870807:	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 and the right to submit statements in own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened.

870810:	Commanding Officer recommended discharge under other than honorable conditions by reason of unsatisfactory performance, misconduct as evidenced by a pattern of misconduct, and misconduct due to drug abuse (use).  Commanding Officer’s Comments (verbatim):  […Fireman B_ (Applicant) willfully fails to obey Navy regulations.  By indulging in illegal drug abuse, he has proven himself unreliable, untrustworthy, and of limited potential, further hindering his usefulness to this command…]

870812:	Drug dependency evaluation indicates the Applicant is not dependent, poly drug abuse.

871016:	CNMPC 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 870828 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents the Applicant’s use of a controlled substances and willful disregard for the requirements of military discipline.  The Applicant’s service is marred by award of non-judicial punishment on three occasions and numerous counseling and retention warning entries.  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.  Under other than honorable conditions most clearly describes the Applicant’s character of service.  Relief denied.

The following is provided for the Applicant’s information:  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.  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, credible evidence that the Applicant is drug free, are examples of verifiable documents that should be provided to receive consideration for clemency, based on post-service conduct.  

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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