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

 ex-ET3, USN
Docket No. ND02-00695

Applicant’s Request

The application for discharge review, received 020418, 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 030116.  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.  The basis for the other than honorable discharge was misconduct.  This can be attributed to my arrest on April 20, 2001.  However, the charges filed against me, on the date of the arrest, have since been expunged.  This indicates that the arrest and detainment of myself were not appropriate and have been cleared from record.  Therefore, a discharge based on misconduct is not justified.  Furthermore, my evaluations illustrate that my service and performance, while active duty, was well above average and deserving of an honorable discharge.

Documentation

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

Letter from Attorney at Law B_ K_
Expungement Order
Letter from Attorney at Law B_ K_
Charge(s) Statement from B_ R. D_
Evaluation Report & Counseling Record (3 pages) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990309 - 990419	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  990420		Date of Discharge:  010606

Length of Service (years, months, days):

	Active:    02  01  17
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 (24 month extension)

Education Level:  12			AFQT:  95

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3)	Behavior:  4.33 (3)		OTA:  3.68 (5.0 Evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

010420:	Civil Conviction:  [State of South Carolina, County of Berkley] for Possession of Marijuana for distribution (474.7 gross grams), Possession of Marijuana for distribution (875 gross grams of green plant material), Possession of Cocaine for distribution (14 gross grams) and Trafficking Cocaine.
Sentence:  Case pending in Berkeley, County, SC.
{Applicant's documentation indicates charges were expunged on 011018}.  {Extracted from Applicant's supporting documents}. 

010501:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010501:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010509:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

010509:	Commander, Naval Region Southeast authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010516:	Applicant's request to revoke waiver of Administrative Separation Board.

010524:	Commander, Naval Region Southeast denied Applicant's request to revoke waiver of Administrative Separation Board.

010628	Commander, Naval Region Southwest clarification of reasons for denial of Applicant’s request to revoke waiver of Administrative Separation Board.  Applicant did in fact seek qualified civilian counsel prior to filling out and signing her notification rights.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010606 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’s charter limits its review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable.  The Board found the Applicant’s discharge characterization appropriate regardless of a civil conviction.  The fact that the Applicant’s civil conviction was later expunged does not impact the equity and propriety of the Applicant’s discharge characterization.  Drug abuse (use) warranted processing for separation, normally under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  Furthermore, the receipt of commendatory awards and favorable performance evaluations during an Applicant’s enlistment do not guarantee an honorable discharge.  The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use.  The record is devoid of evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor, an upgrade to honorable would be inappropriate.  Relief not warranted.

The following is provided for the Applicant’s information:  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 recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, 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