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

  ex-ATAN, USN
Docket No. ND03-00364

Applicant’s Request

The application for discharge review was received on 20021227.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20031229.  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: GENERAL (UNDER 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.  “Dear Sir or Madam

First let me thank you for taking the time to review my situation.  I am requesting an upgrade of my discharge status based on my performance as a sailor prior to my discharge and my performance as a civilian after.  I was recommended for an Admin Review Board by my Commanding Officer because of an infraction I committed while on active duty.  The decision of the review board was to retain me as a sailor.  My Commanding Officer informed me he was not pleased with their decision.  At this point I was torn between staying in the Navy or getting out, which is what my C.O. wanted me to do.  As you know the Admin Review process takes a long time, and for months I had been told I was going to be discharged.  I made plan accordingly, moving my family to Wichita, accepting employment at LearJet, enrolled in school, etc.  Based on the previous and my Commanding Officer’s request for me not to accept the Admin Review Board’s decision I agreed to be separated.  Had I known it was going to result in anything other than an Honorable Discharge I would have not agreed to be separated.  I never questioned the type of my discharge because of the “request for me to accept separation,” I guess that is my fault.  I had the influence of my peers and the majority of my Chain of Command to stay in an once again prove myself and make things right.  I would have taken pride I doing so, knowing that a review board consisting of high ranking officers had decided I was too good to let go.  I have attached documents to show my abilities and integrity prior to and after this isolated incident.  Thank your for your time.”

Documentation

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

Letter of Commendation dated June 7, 1995
Letter of Commendation dated January 9, 1996
Letter to Employer from satisfied customer dated August 8, 2002 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940920 - 950403	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  950404		Date of Discharge:  970728

Length of Service (years, months, days):

	Active:    02  03  23
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  91

Highest Rate:  AT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE”E”

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980401:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order or regulation, violation of UCMJ, Article 112a: Possession of a controlled substance and intent to distribute a controlled substance.
Award:  Forfeiture of $539.00 pay per month for 2 months (suspended for 6 months), restriction to barracks for 45 days, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

980403:	Retention Warning:  Advised of deficiency (Misconduct as evidenced by your being found to have committed the following offenses at CO’s Mast on 980401: Violation of the UCMJ Article 92 (Failure to obey a lawful order); violation of the UCMJ, Article 112a (Wrongful possession of a controlled Substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980406:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980406:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980429:	An Administrative Discharge Board found that the Applicant had committed misconduct due to drug abuse and recommended retention.

980519:	Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):[ Strongly recommended separation.  By his own admission at NJP, ATAN U___ stated he knowingly purchased an illicit controlled substance, testosterone enathate, with the intent to use and distribute.  His actions show a complete disregard for military and civil legal statutes, and his conduct is prejudicial to good order and discipline]. 

980615:	Assistant Secretary of the Navy (Manpower & Reserve Affairs) recommended discharge general for misconduct due to drug abuse.

980710:	BUPERS directed the Applicant's discharge general under honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980728 with a general under honorable conditions for misconduct due to drug abuse (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.  Relief is not warranted based on Applicant’s issue.  The Applicant's misconduct is clearly documented, and mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Applicant was afforded the appropriate due process during the processing of his case, including an administrative discharge board review.  There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant's discharge and an upgrade of the Applicant’s discharge to an honorable characterization is not warranted.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  As this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief is appropriate.

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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