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

 ex-HR, USN
Docket No. ND02-00990

Applicant’s Request

The application for discharge review, received 020708, 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 030424.  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) His violations of the UCMJ notwithstanding, this former member proffers that his overall naval record supports recharacterization of his service period to honorable.

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

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880512 - 880516	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880517		Date of Discharge:  890804

Length of Service (years, months, days):

	Active:    01  02  16		Does not exclude lost time
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rate:  HR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  44

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:

880519:	Applicant briefed on Navy's policy of drug and alcohol abuse.

880602:	Drug and Alcohol Abuse Report:  Marijuana abuse, less than monthly, ashore off duty.  Service directed urinalysis 880517.  Commanding Officer recommended retention, level I treatment.  Comments: SNM tested positive for THC in the accession pipeline urinalysis.

890131:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0730, 890119 to 0930, 890123 (4 days/surrendered), (2) Unauthorized absence from 0700-1230, 890124, violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 881214, to wit: cocaine.
	Award: Forfeiture of 1/2 months pay, restriction and extra duty for 45 days.  No indication of appeal in the record.  [Extracted from Commanding Officer's letter dated 890509.]

890214:	Drug and Alcohol Abuse Report:  Cocaine abuse.  Unit-sweep urinalysis 881228.  Commanding Officer recommended separation.  Comments: HR (Applicant) signed a pre-service drug waiver for a positive urinalysis at recruit training, June 1988.  HR (Applicant) possesses no potential for future military service and is not recommended for advancement nor retention in the military.

890203	Applicant to unauthorized absence.

890305:	Applicant declared a deserter.

890410:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0730, 890203 to 1600, 890315 (40 days/surrendered), (2) Unauthorized absence from 1700, 890331 to 0800, 890401.
	Award: Forfeiture of $349 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

890503:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by service record entries.

890503:	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.

890509:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890615:	Medical evaluation for drug/alcohol abuse found the Applicant to be cocaine dependent, in partial remission, and an alcohol and cannabis abuser, both in partial remission.  

890727:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890802:	NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongful use of a controlled substance on 890714, to wit: cocaine, (2) Wrongful use of a controlled substance on 890714, to wit: THC.
	Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

890804:	Applicant refused treatment.

890927:	Drug and Alcohol Abuse Report:  Polydrug abuse, ashore off duty.  Abuse denied.  Probable cause urinalysis 890712.  Commanding Officer recommended separation.  Comments:  Member was offered VA treatment prior to discharge and member declined treatment at that time.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 890804 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 equitable and appropriate.  Drug abuse (use) warranted processing for separation, normally under other than honorable conditions.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor.  The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to his own misconduct.  The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use.  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 honorable would be inappropriate.  Relief denied.

Issue 2:  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 did not provide any documentation for the Board’s review.  Relief denied.

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 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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