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

  ex-ATAN, USN
Docket No. ND03-00360

Applicant’s Request

The application for discharge review was received on 20021220.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20031205.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1.  " I would like my discharge upgraded per item #3, Also I would like my reenlistment code changed to allow me to serve in a reserve capacity.  Main issue, I would like considered is the fact that my discharge was based on one isolated incident in 60 months of service with no other adverse actions.  I would like to stand on my service record in this matter along with supporting documents included.  I've recently petitioned VA to change my VA loan status.  After reviewing the case they changed my status from ineligible to eligible.  Also I have included two beneficial suggestions.  I implemented while on active duty.  These two suggestions saved the Navy millions of dollars and revolutionized infrared bombing in the A-6 community, Note: Also am fully cross-trained on F-18 infrared bombing system I made a one-time miscue at a time when my family was leaving me, I cared deeply for them.  The most important point I should make is that my skills in infrared bombing systems is in great need now.  I was the best infrared technician, and brought about significant improvements to accuracy and mission readiness at each command assigned.  My life has been exemplary since that one incident; I work for public utility water system in Reno, NV -5 year's service.  I am ready for this responsibility and will make great strides for you and this country.  I more than most should be involved in this current escalation of vigilance worldwide.
Thank you for your consideration of this matter."

Documentation

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

        VA Certificate of Eligibility VA 344-0269959
        Beneficial Suggestion #2745 - NAS Whidbey Island (9 pages)
        Beneficial Suggestion # 14-94  NAS Fallon (11 pages)
        Copy of DD Form 214Beneficial Suggestion # 14-94  NAS Fallon (11 pages)
        General Employee Performance Appraisal dtd 1/14/02 (3 pages)
        General Employee Performance Appraisal dtd 1/13/03 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Active: 	USN   	        	  871123 - 931107	    HON
	 Inactive:  	USNR (Dep)     871116 - 871122         COG

Period of Service Under Review:

Date of Enlistment:  931108		Date of Discharge:  940805

Length of Service (years, months, days):

	Active:    00  08  28
	Inactive:  None

Age at Entry:  29			Years Contracted:  3 

Education Level:  15			AFQT:  96

Highest Rate:  AT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (2)	Behavior:  2.2  (2)		OTA:  3.3

Military Decorations:  NONE

Unit/Campaign/Service Awards: GCM, SWASM (2) SSDR, EAWSI, NAM, NDSM, AFEM

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:

931108:	Reenlisted for 3 years at NAS Whidbey Island, WA.

940518:	NAVDRUGLAB, Oakland CA, reported Applicant’s urine sample, received 28APR94, tested positive for Amphetamines/Methampetamine.

940622:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance, (Amphetamine) and Article 86: UA, 1 hr 10 min. 
	Award:  Forfeiture of 1/2 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

940623:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse as evidenced by Commanding Officer's Non-Judicial Punishment of 22 June 1994 and Navy Drug Lab Oakland, CA message 181645Z May 94.

940623:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, waived all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.  

940624:	Applicant's statement in service record.

940705:	DAAR: Random urinalysis - date of incident Apr 28, 94, positive for Amphetamines, not dependent.  Applicant states he took a pill given to him by a friend, he claims he did not know what the pill was, only that it was suppose to help him stay awake. Recommend process for discharge.

940707:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct for commission of a serious offense and drug abuse (use).  Commanding Officer’s comments: " I recommend that Applicant be separated from the Naval Service with a characterization of Other Than Honorable.  Applicant is an admitted drug offender.  In this age of downsizing, the Navy needs only the best sailors who are going to abide by rules and regulations.   Although Applicant has provided information to civilian authorities regarding others involved in illegal drug activities, he is in error about the consequences of providing that information.  After checking with the consolidated Task Force, it was learned that Applicant did not initially contact them until after he had been to XOI.  It is further pointed out to naval officials that the drug operation that Applicant highlighted on the enclosure to his statement was in no way related to any information that Applicant provided them, different people were involved.  In fact, the detective he gave the information to is out of the office until August, so no action will be taken until at least August.  Also, they told Applicant to take care of his military problems before they would work with him.  No one has followed up on his information nor do they plan to do so in the immediate future.  His allegation that his family's safety is in jeopardy due his cooperation with civilian authorities is unfounded. 
 His lack of judgement and failure to comply with military law constitute a serious departure from conduct expected of sailors.  Applicant has no potential for further naval service and his misconduct warrants an Other Than Honorable discharge.  I request expeditious processing due to the detrimental effect that his conduct and continued presence has on good order and discipline."

940729:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Authorized administrative reduction to E-3 effective upon discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940805 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 Applicant states his discharge was based on one isolated incident in five years of documented outstanding service with no other infractions.  There is credible evidence in the record that the Applicant used illegal drugs.  Even one instance of drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Despite the positive aspects of the Applicant’s service, 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.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 evidence of post-service conduct was 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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