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

 ex-ADAN, USN 
Docket No. ND03-00227

Applicant’s Request

The application for discharge review, received 20021121, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20030917.  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 Applicant’s post-service accomplishments were extensive and commendable.  However, they were not sufficient to mitigate the extent of his in service drug use and fell short of that required for relief.  The Board’s vote was three to two that the character of the discharge shall not change.  The Board was unanimous that the narrative reason for the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member 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:

University programs certificate of professional achievement, dated October 16, 1994  (Real Estate Principles)
University Programs certificate of professional achievement, dated November 7, 1994 (Real Estate Principles)
Certificate of Scholarship "These last days", dated August 4, 1998
Famous poet award recognition, dated 1998
(Fact) Forensic Addictions Corrections Treatment Associate Level I certificate, dated June 19, 2002
University of California, San Diego, School of Medicine, Cross training certificate, dated April 24-26, 2002 (2 copies)
University of California, San Diego, School of Medicine, Pacific Southwest Addiction Technology Transfer Center’s 2001 Summer Clinical Institute in Addictions studies, dated July 30 – August 2, 2001 (2 copies)
Certificate of Continuing Education, How to Supervise People for Newly-Appointed Managers and Supervisors, dated May 18, 2001
Certificate of achievement, Thinking for a Change, dated September 14, 2001
Certificate of completion, Faith for Today, dated February 27, 1984
Nutrena Feeds Safety incentive award, dated February 27, 1995
Letter from the Assessor -Clerk-Recorder, dated March 21, 2000
Letter of Recommendation from Program Director, Mental Health Systems, Inc., dated March 28, 2002
Certificate of achievement, dated February 22, 2002
Letter of recommendation from Head of Services, IN-Prison Programs, Mental Health Systems, Inc, dated May 7
Letter of recommendation from Pastor, Lily of the Valley Emmanuel Church of Jesus Christ, dated November 10, 2002
Travel certificate, separation without orders, dated October 8, 1993 (3 copies)
West Hills College Academic history
Letter of Recommendation from CCUI, Office of Substance Abuse Programs, dated April 29, 2002
Letter of Recommendation from CEO, Owner of JP Services, Vice-President, Alternate Modalities-Gambro Healthcare, dated December 26, 2002
Marriage certificate (2 copies)
Certificate of Registry of Marriage (2 copies)
Applicant’s resume (2 pages)
Certificate of Attendance “Men in Recovery,” dated February 21, 2003
Certificate of completion “Recovery Dynamics,” dated December 4-5.
West Hills Community College transcripts
Employment evaluation (15 pages)
Employee of the Month certificate, dated May 11, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	771029 - 780214	COG
	Active:   USN			780215 - 850314	HON
		   USN			850315 – 870115	HON
		   USN			870116 – 910703	HON

Period of Service Under Review:

Date of Enlistment:  910704		Date of Discharge:  931008

Length of Service (years, months, days):

	Active:    02  03  05
	Inactive:  None

Age at Entry:  35			Years Contracted:  4

Education Level:  13			AFQT:  39

Highest Rate:  AD1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (4)	Behavior:  3.25 (4)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (3), NDSM, SASM, BER, AFEM, SSDR

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:

910704:	Applicant reenlisted for 4 years.

930108:	Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty.  Abuse denied.  Random urinalysis 921120.  CAAC found the Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: Petty Officer (Applicant’s) record of performance at NRD Kansas City was that of a 4.0 sailor.  Fleet evaluations reflected much the same.  Due to his conviction at a Special Courts Martial for use of a prohibited substance (cocaine) Petty Officer (Applicant) is being processed for separation from the Navy and is not recommended for continued service.

930204:	Special Court Martial
	Charge I: violation of the UCMJ, Article 112A:
	Specification 1: Wrongful use of a controlled substance between 921110 and 921120, to wit: cocaine.
	Findings: to Charge I and specifications 1 hereunder, guilty.
	Sentence: Confinement for 45 days, reduction to AD2.
	CA 930609: Sentence approved and ordered executed.

930617:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930617:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930708:	An Administrative Discharge Board, based upon 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.

930709:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

930805:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930907:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930921:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930927:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

981214:	NDRB documentary record review Docket Number ND98-00363 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931008 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 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board greatly appreciates the Applicant’s efforts to continue his education and his involvement in the drug rehabilitation of inmates and encourages him to continue his participation.  However, the Applicant did not provide sufficient verifiable documentation of good character and conduct to mitigate his special court-martial conviction for illegal drug use.  Relief is not warranted.  However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous thirteen years of honorable service.  

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

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