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

ex-AR, USN
Docket No. ND02-00575

Applicant’s Request

The application for discharge review, received 020328, requested that the characterization of service on the discharge be changed to honorable.  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 021217.  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.  My discharge from the United States Navy was inequitable due to the fact is was based on one isolated incident in 36 months of serve with no other adverse action.  Further more, since my discharge, I have continued to strive as a responsible member of society without exception.  In the two years since my discharge, I have completed all requirements needed to earn on Associates of Arts degree and am currently applying to multiple universities, including the University of Central Florida and Florida Institute of Technology.  I feel that an upgrade in my discharge status is absolutely necessary in order to be acceptable to future career opportunities.  During my service in V1 Division aboard the USS Enterprise, I was continuously awarded with above average marks on my periodic evaluations reports, proving the value of my service was not overlooked.

Documentation

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

Copy of DD Form 214
Brevard Community College Transcript
Personal Achievement Letter (Dean's List)
Final Grade Average Letter from Brevard Community College dated May 10, 2000
Letter of Congratulations for Outstanding Achievement dated March 12, 2001
Letter of Congratulations for 2001-2002 Talent Roster of Outstanding Transfer    
    Students from Community College dated April 16, 2001 
Letter of Congratulations for 2001-2002 Talent Roster of Outstanding Transfer
        Students from Community College dated September 2001
Certificate for Talent Roster of Outstanding Transfer Students from Community 
        Colleges Program for Academic Excellence at a two-year college 2001-2002
Admittance Letter for the University of Central Florida dated October 23, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	961220 - 970127	COG

Period of Service Under Review:

Date of Enlistment:  970128		Date of Discharge:  000225

Length of Service (years, months, days):

	Active:    03  00  03
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  56

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)	Behavior:  2.50 (4)		OTA:  2.99    (5.0 Evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NM, AFEM, NUC, GCM

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

970902:	UA from 0630-0700 (15 minutes)

970909:	UA from 0630-0645 (15 minutes)

970911:	UA from 0630-0700 (30 minutes)

991124:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 81: Conspire with AN W_ to distribute MDMD A Schedule I controlled substance on 990902.  Charge II: violation of the UCMJ, Article 112a: (2 Specifications) Wrongfully distribute MDMA A Schedule I controlled substance on 990902; Wrongfully use cocaine 991107.
	Sentence:  Confinement for 30 days, forfeiture of $639.60 for 1 month, reduced to E-1.
	CA action 991217:  Sentence approved and ordered executed.

991124:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

991124:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991203:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 991123, tested positive for [cocaine].

000114:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offense and drug abuse (use).  Commanding Officer’s comments (verbatim): [On 24 November 1999, a Summary Court-Martial convicted AA B_ (Applicant) of conspiring with another service member to distribute MDMA, wrongful distribution of MDMA, and wrongful use of cocaine.  AA B_ (Applicant’s) misconduct indicates he does not have potential for further naval service, and he waived his right to an administrative board.  Accordingly, I recommend that AA B_ (Applicant) be discharged from the naval service for drug abuse with a characterization of Other Than Honorable.] 

000216:	COMCRUDESGRU TWELVE 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 000225 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 disagrees with the Applicant’s contention that his discharge was inequitable.  The receipt of commendatory awards and favorable performance evaluations during the Applicant’s enlistment does not guarantee him an honorable discharge.  While the Applicant believes his above average marks on his periodic evaluation reports prove the value of his service, his performance prior to his drug use does not mitigate his distribution and use of illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Applicant’s service record is marred by a Summary Court Martial for conspiring to distribute a controlled substance, MDMA (Ecstasy); wrongful distribution of a controlled substance, MDMA (Ecstasy); and the wrongful use of cocaine.  The record clearly reflects the Applicant’s disregard for the Navy’s Zero Tolerance Policy on drug use and demonstrated he was unsuitable for further service.  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.  Relief denied.

Issue 2:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing future career opportunities.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board did not discern any impropriety or inequity.  Relief denied.

Issue 3:  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 living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post-service accomplishments was found not to mitigate the conduct for which he was discharged.  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 highly recommended but not required.  

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 "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