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

 ex-AMS3, USNR (TAR)
Docket No. ND02-01220

Applicant’s Request

The application for discharge review, received 020826, requested that the characterization of service on the discharge be changed to honorable.  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 030612.  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: GENERAL (UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I served honorably in the Navy from Sep 1991 for four years.  I extended my enlistment for 24 months for orders in Atlanta so that I would be closed to home.  I got in trouble in June 1996. I admitted my mistake at NJP.  I went before a separation Board in Oct of 1996 and they voted 2-1 to allow me to stay in the Navy.  Captain D_ I_ P_ recommended that I be discharged anyway.  I received a General (Under Honorable Conditions) in March 1997.

After getting out of the Navy I started attending college.  I attended Georgia Perimeter College and the University of Georgia.  I graduated in August 2001, with a Bachelors Degree in Finance with an overall GPA of 3.65.

I am now employed as a Commercial Banker with BB&T (Branch Banking & Trust), the 14th largest bank in America.

I am very sorry for the mistake that I made. I made the same statement at my NJP. I apologized and accepted my punishment.

I would like to clear my name so that I can move on with my live.  Thank you.

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: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901215		Date of Discharge:  970307

Length of Service (years, months, days):

	Active:    05  05  22
	Inactive:  00  09  00

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  85

Highest Rate:  AMS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (4)	Behavior:  4.00 (4)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

910916:	Applicant commenced active duty for 48 months with TAR enlistment program.

950915:	Applicant extended active duty for 24 months.  (Term of extension extracted from Applicant's issue listed on DD Form 293.)  [Extracted from History of Assignments.]

960605:	NJP for violation of UCMJ, Article 112A: Wrongful use of an anabolic androgenic steroid, a schedule III, controlled substance.
	Award: Forfeiture of 1/2 months pay for 1 month, restriction and extra duty for 45 days, reduction to AMSN.  Reduction suspended for 6 months.  No indication of appeal in the record.  [Extracted from Chief of Naval Personnel letter dated 970211.]

Unknown:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  [Extracted from Chief of Naval Personnel letter dated 970211.]

Unknown:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the Applicant had committed misconduct due to drug abuse, and recommended retention.  [Extracted from Chief of Naval Personnel letter dated 970211.]  [Vote extracted from Applicant's issue listed on DD Form 293.]

970211:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy the Applicant be discharged general (under honorable conditions) by reason of misconduct due to drug abuse (use).

970219:	Assistant Secretary of the Navy (M&RA) approved the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse (use).

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970307 with a characterization of general (under 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  Even though the Applicant was honest at his non-judicial punishment (NJP), it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of NJP for illegal drug use, thus substantiating the misconduct for which he was separated.  Even though the administrative discharge board recommended retention, the commanding officer is under no obligation to follow it.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied.  For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions. 

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.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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

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