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

 ex-DCFA, USN
Docket No. ND03-00383

Applicant’s Request

The application for discharge review, received 20030107, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority or Completion of Required Service.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed a civilian attorney as the representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20031023.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the reason for discharge and subsequent characterization of the Applicant’s service was discovered by the NDRB.  The Board determined that relief was warranted on the basis of equity.  The Board’s vote was three to two that the character of the discharge and the narrative reason for the discharge will change.  The discharge shall change to HONORABLE/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 3630900, Separation Code of JFF

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:  

“1.  Equity:  Whether the applicant’s post-service conduct, including successfully applying for, enlisting and completing required service in the National Guard and subsequently being accepted into National Guard OCS, provides a sufficient basis to merit upgrade.

2.  Propriety:  Whether the adverse separation action was improper due to the fact that, of the two accusers against the applicant during nonjudicial punishment proceedings and the subsequent adverse board action, one recounted his accusations under oath and there was no corroboration of the second individual’s identification of the applicant during a tape recorded sting operation transcribed and included as an enclosure to the original DRB petition.”  

Documentation

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

Affidavits (3)
Character reference from LCdr, dated June 20, 2001
Character reference from DC 1 (SW/AW), dated July 11, 2001
California All-Purpose Acknowledgment, dated July 27, 2001
Change of name decree dated June 4, 2001
Ohio Army National Guard State Officer Candidate School acceptance letter dated October 10, 2003
Letter of Recommendation from 2nd LT D_ L_ dated October 10, 2003
Honorable Discharge Certificate dated April 14, 2003
Army National Guard enlistment contract dated April 14, 2002 (3 pages)
Associate Degree dated May 9, 2003
Separation Orders dated May 30, 2003
Letter from President G_ W. B_ dated March 18, 2003
Copy of DD Form 214
Character reference from SGT P_ D_ dated March 18, 2003
Character reference from J_ T_
Character reference from K_ H_
Character reference from SGT S_ H_ October 5, 2003
Enlistment contract dated July 21, 2003 (2 pages)
Photocopy of USAR Identification Card
Photocopy of Private Security Registration Card
Photocopy of Pay Stubs (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970908 - 970929	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970930		Date of Discharge:  000905

Length of Service (years, months, days):

	Active:    02  11  06
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  9  GED 		AFQT:  68

Highest Rate:  DC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  3.50 (2)		OTA:  3.75

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NUC, NER, Letter of Commendation

Days of Unauthorized Absence:  2

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:

000320:	Applicant to unauthorized absence 0700, 000320.

000320:	Applicant missed movement.

000322:	Applicant from unauthorized absence 1400, 000322 (2 days/surrendered).

000404:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFA.  Reduction suspended for 6 months.  No indication of appeal in the record.

000615:	Vacate reduction to DCFA awarded at NJP dated 000404 due to continued misconduct.

000615:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance December 1999, to wit: ecstasy, violation of UCMJ, Article 80: Attempt to purchase Lysergic Acid Diethylamide, a controlled substance on 000601.
Award: Forfeiture of $763 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000619:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

000619:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000721:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

001012:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

020517:	NDRB documentary record review Docket Number ND01-01147 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000905 with a characterization of general (under 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 but inequitable (C and D) at the time of discharge.

In the course of reviewing the Applicant’ service record, transcript of the administrative discharge board, and the Applicant’s testimony, the Board found, by a vote of 3 to 2, that the evidence of record did not support the Applicant’s administrative separation for drug abuse.  Applicant's separation for this reason was, therefore, determined to be inequitable.  Relief is therefore granted.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, 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