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

 ex-AA, USN
Docket No. ND02-00442

Applicant’s Request

The application for discharge review, received 020228, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before the board in the Washington National Capital Region.  The Applicant did not list any 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. Subsequent to review the applicant obtained representation from the American Legion.

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.  (Equity Issue) His single violation of the UCMJ notwithstanding, this former member proffers that his overall service record is sufficient to warrant separation under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's DD Form 214 (3)
Statement from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890825 - 891004	COG

Period of Service Under Review:

Date of Enlistment:  891005		Date of Discharge:  920605

Length of Service (years, months, days):

	Active:    02  08  01
	Inactive:  None

Age at Entry:  30			Years Contracted:  4

Education Level:  16/14		AFQT:  56

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (3)	Behavior:  3.10 (3)		OTA:  3.53

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, JMU, SASM with Bronze Star, NDSM

Days of Unauthorized Absence:  None noted.

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:

891010:	Applicant briefed on Navy's policy on drug and alcohol abuse.
Note: Applicant admitted to having used marijuana in the past on NAVCRUIT 1133/7.  No action take.

920504:	NAVDRUGLAB, Jacksonville, FL reported Applicant's urine sample, received 920424, tested positive for THC.

920506:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 24Apr92.
	Award: Forfeiture of $440.24 per month for 2 months, restriction and extra duty for 45 days, reduction to AA.  No indication of appeal in the record.

920506:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NJP of 6 May 1992.

920506:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920507:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  
[Extracted from CO's message dated 8May92.]

920508:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
	Commanding Officer’s comments (verbatim):  [SNM (Applicant) tested positive for marijuana use in a random urinalysis conducted as part of command program, and admitted marijuana use.  Use of illegal drugs will not be tolerated by this command.

920528:	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 920605 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 used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Applicant’s performance prior to his drug abuse does not mitigate his use of illegal drugs.  The discharge was proper and equitable.  Relief denied.

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 evidence to mitigate his conduct while on active duty, and therefore an upgrade based on post-service conduct is not warranted.  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), effective 15 Aug 91 until 04 Mar 93, 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 "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