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

 ex-CECR, USN
Docket No. ND02-00779

Applicant’s Request

The application for discharge review, received 020509, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 021023.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue)  This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Statement from Applicant dated May 7, 2002
Navy Alcohol and Drug Safety Action Program certificate dated May 8, 1987
Letter of appreciation from Ventura County Special Olympics dated July 27, 1990
Copy of certificate of appreciation from American Red Cross dated February 1992
Letter from United Blood Services
Copy of certificate from United Blood Services
Copy of diploma dated July 1, 1993
Copy of certificate of completion of apprenticeship dated July 1, 1993
Copy of certificate of completion dated December 1995
Copy of certificate dated November 1, 1995 (Business Permit)
Copy of certificate dated November 1, 1995 (Electrical Contractor)
Copy of certificate of completion dated November 30, 1999
Copy of certificate dated July 14, 1996
Letter from Applicant’s wife dated October 20, 2002
Notice of Property Tax Assessment dated January 31, 2002
Copy of certification as Firefighter 1 issued March 27, 2000
Copy of certificate of completion dated April 21, 2001
Copy of certificate of completion dated May 2001
Continuing Education Certificate dated May 31, 2002
License Application (undated)
Letter from IBEW Business Manager dated August 22, 2002
County College of Morris certificate dated Spring 2002
County College of Morris certificate dated Summer 2002
County College of Morris certificate dated Summer 2002
County College of Morris certificate dated Fall 2002
NCPCCI Examination Results dated July 12, 2002
NCPCCI Examination Results dated July 12, 2002
NCPCCI Examination Results dated July 20, 2002
Copy of abstract driver history and explanation dated April 23, 2002
Character reference dated April 23, 2002
Job/character reference dated April 25, 2002
Letter of acknowledgement dated April 18, 2002
Job/character reference dated April 12, 2002
Criminal record check dated April 17, 2002
Job/character reference dated May 7, 2002
Copy of DD Form 214
Copy of Enlisted Performance Record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	850603 - 850627	COG

Period of Service Under Review:

Date of Enlistment:  850628		Date of Discharge:  870514

Length of Service (years, months, days):

	Active:    01  10  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  82

Highest Rate:  CECN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.90 (2)	Behavior:  2.90 (2)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

850705:	Applicant briefed on Navy's policy of drug and alcohol abuse.

870410:	NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
	Award: Forfeiture of $369 per month for 2 months, restriction and extra duty for 45 days, reduction to CECA.  No indication of appeal in the record.

870422:	Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly March 1987, ashore off duty.  Random urinalysis 18 March 1987.  Medical officer determined Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: CECA (Applicant's) drug use is incompatible with naval service.  Recommend discharge from the Navy.

870423:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana of 9 Apr 87.
	Award: Forfeiture of $329 per month for 2 months, restriction and extra duty for 45 days, reduction to CECR.  No indication of appeal in the record.

870424:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

870427:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive random urinalysis on 18 March 1987 for cocaine and a positive random urinalysis on 9 April 1987 for marijuana.

870427:	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.

870428:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly April 1987.  Random urinalysis 9 April 1987.  Medical officer determined Applicant not dependent.  Commanding Officer recommended separation.  Comments: CECA (Applicant's) drug use is incompatible with naval service.  Recommend discharge from the Navy.

870430:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): CECR (Applicant) willfully disobeyed the Navy's zero tolerance policy on two occasions by using cocaine and marijuana.  Drug usage simply cannot be tolerated. He is most strongly recommended for an other than honorable discharge.

870509:	CNMPC 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 870514 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 Applicant requested clemency based upon post-service conduct.  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.  After a careful review of the entire record, including the documentation submitted by the Applicant and personal testimony, the board determined that the Applicant’s service is equitably characterized as being performed under other than honorable conditions.  His discharge was appropriate and his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective 
15 Dec 86 until 14 Jun 87, 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