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

 
 ex-SR, USN
Docket No. ND03-00221

Applicant’s Request

The application for discharge review, received 20021113, 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 20031017.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  I respectfully request that you review my discharge and consider upgrading it to general under honorable.  I take full responsibility for, and deeply regret, my actions that led to my discharge.  I never intended to dishonor my country, the United States Navy or myself.  Since leaving the Navy I have worked hard to get my life back on track.  Above all, I am clean and sober.  I am enrolled, studying to earn my G.E.D., attending church regularly and enrolled in bible study classes.  It is my hope to continue my education and eventually become employed in the field of computer programming.  Thank you for considering this matter.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010830 - 010925	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  010926		Date of Discharge:  020509

Length of Service (years, months, days):

	Active:    00  06  22 (Excludes time lost)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  22

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:

020327:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 020322, tested positive for cocaine/marijuana.

020410:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 020405, tested positive for marijuana.

020410:	NJP for violation of UCMJ, Article 86: Did on or about 0700, 020219, without authority, absent himself from his organization, to wit: Naval Submarine School, and remained absent until on or about 2315, 020319, violation of UCMJ, Article 92: Having knowledge of a lawful order issued by the Commanding Officer, to wit: Paragraph 402.a, NAVSUBSCOLINST 5400.1D dated 000921, an order which it was his duty to obey, did, at or near New Haven, Connecticut on or about 020216, fail to obey the same by consuming alcohol while underage, violation of UCMJ, Article 112a: (3 Specifications), Specification 1: Did at or near New Haven, Connecticut, on or about 020216, wrongfully use cocaine; Specification 2: Did at or near various locations, on diverse dates between 020216 and 020319, wrongfully use cocaine; Specification 3: Did at or near various locations, on diverse dates between 020216 and 020319, wrongfully use marijuana.
	Award:  Forfeiture of $552.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

020410:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020410:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020430:	Commanding Officer recommended to COMSUBGRU TWO Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  [EXTRACTED FROM COMSUBGRU TWO MSG OF 30 APR 02.]

020430:	COMSUBGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020617:	Commanding Officer, CO, NAVSUBSCOL, advised CNPC of Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  “On 19 March 2002, FR M_ took a urinalysis that tested positive for cocaine and marijuana.  He wrongfully used the drug between the dates of 16 February and 19 March 2002, while he was UA.  On 2 April 2002, he took a urinalysis that tested positive for marijuana.  His conduct was detrimental to good order and discipline in the Naval service.  In accordance with reference (a), he was separated from the Naval service with a discharge characterization as Other Than Honorable.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020509 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, 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, 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 documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s statements concerning post-service conduct, without documented evidence, were found not to mitigate the offense for which he was discharged.  Relief not warranted.

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.  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