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

 ex-AA, USN
Docket No. ND02-00485

Applicant’s Request

The application for discharge review, received 020312, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance discharge review before a traveling panel closest to Columbia, SC.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021115.  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.  (Equity Issue) This former member proffers that he has been amply punished for his misconduct and deserves a second chance.  On this basis, he is requesting upgrade of his characterization of service to General (Under Honorable Conditions).

2.  (Equity Issue) This former member further request 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:

Copy of DD Form 214
Letter from applicant to U.S. Senator dated January 15, 2002
Letter to applicant from United States Senate dated November 8, 2001
Letter to United States Senate dated October 29, 2001
Letter from United States Senate dated September 18, 2001
Letter from applicant to Senator undated
Letter from United States Senate dated September 14, 2001
Laboratory results dated May 29, 1999
Letter from applicant dated April 12, 2000
Five pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	980107 - 980121	COG

Period of Service Under Review:

Date of Enlistment:  980122		Date of Discharge:  990901

Length of Service (years, months, days):

	Active:    01  07  10
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  37

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, NER

Days of Unauthorized Absence:  6

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:

980526:	Applicant to unauthorized absence 0715, 26May98.

980527:	Applicant from unauthorized absence 0715, 27May98 (1 day/surrendered).

990617:	Applicant to unauthorized absence 0715, 17Jun99.

990617:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 29May99, to wit: cocaine.
	Award: Forfeiture of $480 per month for 2 months, restriction and extra duty for 45 days, reduction to AR.  No indication of appeal in the record.  Appealed:  990619.  Appeal denied:  990803.  [Appeal information extracted from supporting documents from applicant.]

990622:	Applicant from unauthorized absence 0815, 22Jun99 (5 days/surrendered).

990623:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent

990720:	Drug and Alcohol Abuse Report: Marijuana abuse, abuse denied.  Random urinalysis 990623.  Physician found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended separate not via VA hospital.  Comments:  This incident:  23Jun99 - positive urinalysis for cocaine.  NJP Art. 112A (wrongful use of cocaine).  Member has no potential for further useful service.

990811:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990811:	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.

990819:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

990825:	COMCARGRU THREE 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 990901 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).

Responding to the Applicant’s first issue, the Board disagrees with the Applicant's contention that he is entitled to an upgrade solely based on the fact that he has been amply punished.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a violation of UCMJ, Article 112A, wrongful use of cocaine.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is denied.

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 his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or inequity must have been found to have existed during the period of enlistment in question.  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, is considered.  The Applicant provided no documentation of his post-service.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a drug free existence, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of good character and conduct.  Therefore, no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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