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

 ex-MSSN, USN
Docket No. ND02-00900

Applicant’s Request

The application for discharge review, received 020612, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity at the time of discharge.  However, after review of the evidence the Applicant provided, the Board determined that partial relief is warranted under equitable grounds based on post-service conduct.  The Board’s vote was unanimous that the character of the discharge shall  change to GENERAL (UNDER HONORABLE CONDITIONS) and that the reason for the discharge shall remain the same.  The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that the length and quality of his overall service record warrants a higher characterization of service. 

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's DD Form 214
Statement from Applicant dated June 6, 2002
Letter from National Personnel Records Center to Applicant dated April 2, 2002 and NA Form 13048
Character reference dated April 18, 2002
Character reference dated May 23, 2002
Character reference dated May 22, 2002
Character reference undated
Character reference dated April 16, 2002
Character reference undated
Character reference undated
Character reference dated May 6, 2002
Character reference undated
Character reference dated April 29, 2002
Character reference dated April 29, 2002
Character reference dated April 29, 2002
Character reference undated
Character reference dated April 30, 2002
Character reference dated May 8, 2002
Character reference dated April 13, 2002
Character reference dated May 14, 2002
Character reference dated May 13, 2002
Character reference undated
Character reference undated
Character reference dated May 23, 2002
Character reference dated May 23, 2002
Character reference dated May 9, 2002
Character reference undated
Character reference undated
Character reference dated April 20, 2002
Character reference undated
Character reference dated April 18, 2002
Character reference dated May 30, 2002
Character reference dated April 19, 2002
Authorization and consent to release information VA Form 21-4142

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900216 - 900708	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900709			Date of Discharge:  940407

Length of Service (years, months, days):

	Active:    03  08  29
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  31

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.88 (5)			Behavior:  3.72 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, NDSM, SASM, SSDR, MUC, ESWS

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 3630620.

Chronological Listing of Significant Service Events:

931102:	Retention Warning:  Advised of deficiency (Absence without leave on 941023, dereliction of duty on 931023, and disorderly conduct on 931029.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.   [Extracted from Commanding Officer's message dated 940324.]

940311:	NJP for violation of UCMJ, Article 112A (2 specs): 
Specification 1: Wrongful possess and distribute a marijuana cigarette on 930911.
Specification 2: Wrongfully use, by smoking a marijuana cigarette on 930911.
	Award:  Forfeiture of $475.25 per month for 1 month, process admin separation.  No indication of appeal in the record.

940318:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by two specifications of wrongful possession, use and distribution of marijuana, a controlled substance. [Extracted from Commanding Officer's message dated 940324.]

940318:	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.  [Extracted from Commanding Officer's message dated 940324.]

940324:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

940401:	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 940407 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 NDRB discerned there was no impropriety or inequity in the characterization of the applicant's service or the assigned reason for discharge, at the time of discharge (C and D).  In addition, the Board disagreed with the Applicant’s assertion that his overall service record warrants a higher characterization of service.  However, after consideration of the Applicant's post service documentation, the Board determined that partial relief is warranted on the basis of equity.  The Board determined that the seriousness of the applicant's misconduct prevented changing the discharge characterization to fully Honorable.  The Board voted unanimously to change the character of the Applicant’s discharge to General (Under Honorable Conditions)/ Misconduct.

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 further 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