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

ex-ICFA, USN
Docket No. ND02-00866

Applicant’s Request

The application for discharge review, received 020607, 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 030311.  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 discharge passed down at Captain's Mass was improper.  Prior to this incident both civilian and military records are proof that I had no previous involvement with the civilian law or disciplinary review boards.  My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.  As the result of charges brought forth I was directed to complete a drug and alcohol evaluation and provide two urinalysis specimens.  Without resistance I cooperated.  The drug/alcohol evaluation results showed no evidence of abuse behavior and the urinalysis results showed no evidence of use.

Since my discharge I've entered the job market, where urinalysis was part of the screening process.  I have successfully passed and met the requirements to be hired.  This more than demonstrates the standard by which I presently live.  This standard is not an elevation for me, it the same standard by which I lived, upon my entrance to the military.  To my credit I have received a Navy Achievement Medal and Citations all from Commanding officers of prior command.  The 2 years and 11 months I served in the military were not in vein.

Therefore the reasons identified for my discharge from the military should be changed.  I am requesting that my discharge be changed from Other Than Honorable to General/Under Honorable Conditions.

Documentation

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

Certificate for Navy and Marine Corps Achievement Medal dated April 19, 2000
Citation for November 1998 to May 1999
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980917 - 980929	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980930		Date of Discharge:  010813

Length of Service (years, months, days):

	Active:    02  10  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  56/45

Highest Rate:  ICFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.50 (2)		OTA:  3.17

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM

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:

010521:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

010727:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana between 010329 and 010428.
	Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days, reduction to ICFA.  No indication of appeal in the record.

010727:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010727:	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.

010731:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Factual basis for the separation is CO's nonjudicial punishment of 010727 for violation of UCMJ Article 112a, wrongful use of a controlled substance.
 
010801:	Commander, Naval Training Center, Great Lakes directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010813 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 contends that his discharge was inequitable as it was based on one isolated incident during a 28-month service period in which there were no other disciplinary infractions.  The Applicant’s conduct, and not his time served, forms the primary basis in determining his characterization of service.  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.  The records the Board reviewed showed there to be credible evidence of the Applicant's illegal drug use.  The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to this drug use.  Relief on this basis is denied.

The Applicant further contends that his service record is devoid of any other misconduct (civilian or military) and contains commendatory material that warrants reconsideration of the characterization of discharge.  The Board agrees with the otherwise positive nature of the Applicant's service record.  Administrative separation for drug abuse, however, is normally based on a single incident.  The Applicant’s length of service, performance and behavior markings, service awards, and overall service record does not mitigate his use of illegal drugs.  The Applicant's drug use, as established at his nonjudicial punishment, warranted processing for administrative separation under other than honorable conditions.  Relief on this basis is denied.

The Applicant also contends that his post-service conduct should be considered in determining if an upgrade to his discharge characterization is warranted.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The NDRB is authorized, however, 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 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, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider.  Relief on this basis is denied.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 33, effective 16 Jul 2001 until 21 Aug 2002, 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