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

 ex-SA, USN
Docket No. ND02-00580

Applicant’s Request

The application for discharge review, received 020329, 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.

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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My other than honorable discharge was inequitable because it was based on one isolated incident in 18 months of service with no other adverse action.

2.  The discharge was unfair compared to the type given to others then for the same conduct.

3.  This was a minor offenses compared to my overall service. 

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	890222 - 890322	COG

Period of Service Under Review:

Date of Enlistment:  890323		Date of Discharge:  910823

Length of Service (years, months, days):

	Active:    02  05  01
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  9			AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  2.80 (2)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM(wb*), SSDR, BATTLE"E"RIBBON, NUCR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

090221	Applicant admitted to previous marijuana use on NAVCRUIT 1133/7, USN Alcohol and Drug Abuse Screening Certificate.

891222:	NJP for violation of UCMJ, Article 91: Willful disobedience of a Chief Petty Officer.
	Award:  Restriction and extra duty for 20 days.  No indication of appeal in the record.

900108:	Retention Warning:  Advised of deficiency (NJP - Violation of UCMJ, Article 91 - Willful disobedience to a Chief Petty Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900419:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86 - Absent from unit; violation of UCMJ, Article 128 - Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900419:	NJP for violation of UCMJ, Article 86: Absent from unit , violation of UCMJ Article 128: Assault.
	Award:  Forfeiture of $100.00 pay per month for 1 month, extra duty for 30 days.  No indication of appeal in the record.

910801:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance; violation of UCMJ Article 134: Introduction of contraband to a naval vessel; violation of UCMJ Article 121: Larceny.
	Award:  Forfeiture of $422.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.
	
910805:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

910805:	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.

910807:	Medical officer's evaluation found the Applicant to be not drug dependent.

910809:	Substance Abuse Report indicates Applicant tested positive during a routine unit sweep urinalysis [Extracted from CO's message]. 

910810:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [SA G_ (Applicant) has been an average worker with some disciplinary problems in his past.  His recent theft of a telephone credit card, on which he made approximately $800 dollars worth of calls, coupled with his recent cocaine use has shown him to be unusable by the Navy.  Accordingly recommend SA G_ (Applicant) be separated under other than honorable conditions.

910819:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 910823 under other than honorable conditions for misconduct due to commission of a serious offense (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).

Issues 1-3:  The Board disagrees with the Applicant’s contention that his discharge was unfair and inequitable.  While the Applicant believes his overall service outweighs his misconduct, the record clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service.  His disregard for the Navy’s Zero Tolerance Policy on drug use further demonstrated he was unsuitable for future 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.  Drug abuse alone warranted processing for separation, normally under other than honorable conditions.  However, the Applicant was discharged for commission of a serious offense and not drug abuse, use.  The Applicant’s service record is marred by counseling and discharge warning entries on two occasions and award of non-judicial punishment on three occasions to include violations of the UCMJ which could have resulted in trial by court martial and either a dishonorable or bad conduct discharge.  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.  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.  

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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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