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

ex-RMSN, USN
Docket No. ND02-00545

Applicant’s Request

The application for discharge review, received 020314, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030317.  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 at the time of issue.  The Board’s vote was four to one 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.  This former member avers that his drug and alcohol dependence contributed to and sufficiently extenuated his misconduct of record to warrant recharacterization of service to under honorable conditions.

2.  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:

Letter to Board from Applicant, undated
Cumberland Diagnostic and Treatment Center Award Certificate dated January 30, 1995
Cumberland Diagnostic and Treatment Center Award Certificate dated December 20, 1994
Manhattan Community College Award Certificate dated May 21, 1994
ARRIVE Certificate of Completion from March 21, 1994 – May 16, 1994
USPS Notice of Rating Eligibility issued 20 September, 2001
USPS Notice of Rating Eligibility issued 20 September, 2001
FEDEX memo dated February 7, 2003
FEDEX memo dated March 12, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	840424 - 840710	COG

Period of Service Under Review:

Date of Enlistment:  840711		Date of Discharge:  891030

Length of Service (years, months, days):

	Active:    05  03  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  28

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.56 (5)	Behavior:  3.76 (6)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM, Letter of Commendation

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:

840717:	Applicant briefed on Navy's policy of drug and alcohol abuse.

861114:	Applicant extended enlistment for 4 months.

880811:	Applicant extended enlistment for 22 months.

890324:	Counseling:  Advised of deficiency (performance and personal behavior), notified of corrective actions and assistance available.

890511:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 890502, tested positive for cocaine.

890602:	NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine on 26Apr89.
	Award: Forfeiture of $425 per month for 2 months, restriction for 45 days, reduction to RMSN.  No indication of appeal in the record.

890615:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment dated 2 June 1989 which indicated Applicant wrongfully used cocaine.

890618:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890714:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890721:	Drug dependency evaluation: Applicant non-dependent, drug abuser.  Recommended separation.

890810:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  RMSN (Applicant) freely admits he has violated the Navy's well-known policy of zero tolerance.  Further, he does not display exceptional potential for further useful service based on his prior acceptable, but lackluster, performance.  I concur with the Administrative Board convened in his case, and recommend immediate discharge under other than honorable conditions.

890915:	CNMPC BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

980720:	NDRB documentary record review Docket Number ND97-01237 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 891130 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 was evaluated by a competent medical authority on 890721 who determined that he was not dependent on illegal drugs or alcohol at the time of his discharge.  Nonetheless, the Applicant’s illegal drug use warranted processing for separation under other than honorable conditions.  Relief denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  As noted above, good conduct in civilian life is not in and of itself a sufficient basis to upgrade an unfavorable discharge.  While the Board commends the Applicant for the positive steps he has taken since his discharge, the Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted. 

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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