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

 ex-OSSR, USN
Docket No. ND02-00808

Applicant’s Request

The application for discharge review, received 020515, 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 030221.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Request the Board review my Discharge and upgrade it so that I might be able to use the services of a nearby VA Hospital.  I was Discharged in 1993 and I matured a lot of since that time and realize that I've made mistakes.  I am trying to better myself and raise my family and would sincerely appreciate a favorable review of my Discharge.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900525 - 900806	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900807		Date of Discharge:  930813

Length of Service (years, months, days):

	Active:    03  00  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (4)	Behavior:  3.05 (4)		OTA:  3.25

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR

Days of Unauthorized Absence:  8

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

921013:	Civil Conviction:  [Icelandic Preliminary Court (Traffic Court) of Keflavik, Iceland] for Driving Under the Influence (DUI) of alcohol.  BAC Level for DUI in Iceland is .059.  Member's BAC reading was .128.
Found guilty of DUI--member admitted he was driving under the influence.
Sentence: Fined $654.00 and license suspended for 6 months.

921028:	NJP for violation of UCMJ, Article 95: Resisting apprehension, violation of UCMJ, Article 128: Assault.
	Award:  Forfeiture of $440.00 pay per month for 2 months, restriction to NAS KEFLAVIK for 60 days (restriction to be suspended on 921104 for 6 months and will be remitted unless sooner vacated), reduction to E-2.  No indication of appeal in the record.

930412:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730 930329 until 2103, 930406 (8 days).
	Award:  Forfeiture of 1/2 months pay per month for 1 month (suspended for 6 months), restriction and extra duty for 45 days (suspended for 6 months), reduction to E-1.  No indication of appeal in the record.

930423:	Retention Warning:  Advised of deficiency (Substandard performance to the effect that from 0730 930405 - 2130 930413 did absence yourself from this command without proper authority.  A direct violation of Article 86 of the UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930517:	Retention Warning:  Advised of deficiency (Indebtedness to the U.S. Government as stated in letter from Officer in Charge, Navy Exchange, Charleston, SC in the amount of $173.00.  Refer to Officer in Charge, Navy Exchange, Charleston, SC letter dated 930420), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930722:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award:  Forfeiture of $406.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

930723:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO's NJP held on 930722.

930723:	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.

930726:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  [SNM’s (Applicant’s) drug abuse has surpassed the “one time user category” and in any case is in direct violation of the Navy’s policy on drug abuse and undermines good order and discipline.  SR P_ (Applicant) should be immediately discharged from the naval service under other than honorable conditions.]

930728	Member checked himself into Air Force Base Hospital Charleston, SC due to overdose of crack cocaine on this date.

930730:	BUPERS 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 930813 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 the Applicants discharge proper and equitable.  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 his service, reflects his 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.  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.  An upgrade to under honorable conditions would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of obtaining VA medical benefits or improving employment opportunities as requested by the Applicant.  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.  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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, 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 "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