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

 
 ex-DP2, USN
Docket No. ND03-00274

Applicant’s Request

The application for discharge review, received 20021205, 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 Veterans of Foreign Wars as the 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I will be submitting more supporting documents at a later time.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

“Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 7/18/03 and the following comments are hereby submitted:

The Applicant was a 4.0 performer while on active duty.  He earned an associate degree and was pursuing a bachelor degree.  In addition he was nominated for sailor of the quarter.  He also earned two expeditionary ribbons and numerous letters of accommodations.  While we do not condone his negative conduct we feel that his overall performance should be considered in his request to upgrade his discharge.  Therefore, we concur with the Applicant’s contention that his discharge should be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his general discharge to Honorable Discharge.”

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):

	Active:   USN			721207 - 760909	RELAD TRANSFER TO NR
	Inactive: USNR		760910 – 780125	HON
	Inactive: USNR		780126 - 780212	COG
	Active:   USN			780213 - 810312	HON
		   USN			810313 – 870827	HON

Period of Service Under Review:

Date of Enlistment:  870828		Date of Discharge:  910401

Length of Service (years, months, days):

	Active:    03  07  04
	Inactive:  None

Age at Entry:  35			Years Contracted:  6

Education Level:  12			AFQT:  65

Highest Rate:  DP1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (5)	Behavior:  3.60 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NEM (2), NDSM (2), SSDR with 2 Stars, Letter of Commendation (2), GCM (2)

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

900501:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 900405, tested positive for cocaine.

900615:	Medical evaluation for alcohol/drug abuse found the Applicant to have a problem with alcohol.  Recommend detoxification be offered in VA facility prior to separation.  Will place on antabuse 250 mg.  

900806	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.

900817:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900824:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
	Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to DP2.  Appealed 900827.  Appeal denied 900910.

901010:	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, that the misconduct warranted separation, and by a unanimous vote recommended discharge under honorable conditions (general).

901106:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

901119:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910401 under honorable conditions (general) 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 Applicant states his character is demonstrated by his outstanding evaluations and awards.  The Board agrees the Applicant had very good evaluations throughout his tenure in the Navy, but his performance prior to the misconduct does not mitigate his illegal drug use.  The record is void of any evidence that the Applicant was not responsible for his conduct, he was treated unfairly or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for wrongful use of cocaine.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable conditions would be inappropriate.  Relief denied.  

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 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 11, effective 
14 Jun 90 until 14 Aug 91, 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