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

 ex-AEC, USNR (TAR)
Docket No. ND02-00963

Applicant’s Request

The application for discharge review, received 020625, 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 030331.  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.  My discharge is inequitable because it was based on one isolated incident with 18 years of above average to high performance evaluations and four navy and marine corps achievement medal, which substantiate above average performance.

2.  My discharge is inequitable because I have a disability directly caused by flying for the navy as a C130 F6 instructor.  My sinuses are well documented in my service medical record for 12 years.  The first sinus problems occurred after I started flying.  After year of consults and broken back rib (from coughing), I was diagnosed with sensitive sinuses.  This means without medication to desensitize my sinuses this will overact to almost any stigma-it.  I will not be able to receive any medical attention for this until my discharge is upgraded.

3.  I know I disgraced the navy, my "brother chiefs" and my command and all the sailors who looked up to me.  I let down my family also, and I let myself down.  I made the wrong choices.  For I am terribly sorry and deeply remorseful.  Please don't make me "the example".  My family deserves better.  My service record proves better.  Thank you.

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	830502 - 831004	COG
	Active:   USN			831005 - 870913	HON
	Active:   USN			870914 - 911201	HON
	Active:   USN			911202 - 990831	HON

Period of Service Under Review:

Date of Enlistment:  990901		Date of Discharge:  011001

Length of Service (years, months, days):

	Active:    02  01  01
	Inactive:  None

Age at Entry:  34			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  AEC

Final Enlisted Performance Evaluation Averages (number of marks): All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, GCM(4), NDM, SASM, NAM(4), CNO AVIATION SAFETY, BATTLE"E"(4)

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:

990901:	Reenlisted at VQ-11 NAS Brunswick, ME for 4 years.
 
010430:	NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 010424, tested positive for [THC].

010530:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substances.
	Award:  Forfeiture of $500.00 pay per month for 2 months (suspended for 6 months), restriction for 30 days.  Appealed 010601.  Appealed denied 010607.

010621:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010621:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010627:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010920:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  [I concur with the findings and recommendations of the Administrative Board and recommend that AEC(AW) H_ (Applicant) be separated with an other than honorable discharge. AEC(AW) H_ (Applicant) is either incapable, or simply unwilling, of adhering to the rules and regulations of this command and the U.S. Navy, and is simply unwilling to conduct himself in a manner conducive to good order and discipline.  I strongly recommend that AEC(AW) H_ (Applicant) be separated from the naval service by reason of misconduct due to drug abuse, and that his characterization of service be under other than honorable.] 

010927:	COMNAVREG NE GROTON CT 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 011001 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 and 3:  The Applicant states his discharge was based on one isolated incident in eighteen years of above average service.  The Board agrees the Applicant had above average evaluations throughout his tenure, but his performance prior to the misconduct does not mitigate his use of illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.  

Issue 2:  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  Relief is therefore denied.  However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous twelve years of honorable service.  

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 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