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

    ex-AK3, USN
Docket No. ND03-00380

Applicant’s Request

The application for discharge review was received on 20030107.  The Applicant requests that 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 20031215.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I respectfully request an upgrade and review of my discharge.  Also requested is a review of block (15A) of DD Form 214, based on defense accounting records of first years enlistment.  I made contributions to Montgomery GI Bill for first year.  Attached are copies of both DD 214 and NAVCOMPT Form 2285 for assistance please review these requests in light of having no legal problems from date of discharge and desire to further my educational status.  I thank you for consideration.”

Documentation

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

Copy of DD Form 214
Copy of Leave and Earning Statement

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881125 - 881221	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  881222		Date of Discharge:  940715

Length of Service (years, months, days):

	Active:    05  06  24
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (19 months extension)

Education Level:  10			AFQT:  59

Highest Rate:  AK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (8)	Behavior:  3.57 (8)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NMCOSR (2), HSM, USCGSOSR, NDSM

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 3630600.

Chronological Listing of Significant Service Events:

920430:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award:  Forfeiture of half pay per month for 2 months (suspended for 6 months), reduction to next inferior paygrade (suspended for 6 months).  No indication of appeal in the record.

920724:	Retention Warning:  Advised of deficiencies in performance and conduct as evidenced by your NJP held on 920430, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

931217:	Civil Conviction:  [Duval County Courthouse, State of Florida] for Possession of Crack Cocaine and Driving Under the Influence.
Sentence:  Charge 1: Plead guilty, withheld adjudication, suspended sentence, 12 months probation, placed in drug evaluation treatment and random urinalysis.  Charge 2; Plead guilty, adjudicated guilty, $482.59 fine, 50 hrs community service, DUI school, Driver’s license revoked for 6 months.

940405:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 940331, tested positive for [THC].

940415:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
	Award:  Forfeiture of $552.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

940426:	Medical Officer’s evaluation found Applicant not alcohol or drug dependent.
  
940509:	NJP of 940415 set aside due to command-directed urinalysis-non prosecutable.

940524:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense; misconduct due to drug abuse, and misconduct due to civilian conviction as evidenced by your civilian conviction in the State of Florida on 931217, for Driving Under the Influence and Possession of Crack Cocaine and your urinalysis sample provided on 940331, which tested positive for marijuana, all of which occurred in your current enlistment.

940527:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940615:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, misconduct due to drug abuse and misconduct due to civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940624:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense; misconduct due to drug abuse, and misconduct due to civilian conviction. 

940707:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940715 under other than honorable conditions for misconduct due to commission of a serious offense (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.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational benefits as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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