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

  ex-AA, USN
Docket No. ND03-00449

Applicant’s Request

The application for discharge review was received on 20030124.  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 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: UNDER OTHER THAN 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:

Issue 1.  “I don’t have the forms but, during my appeal board my lawyer showed them the chain of custody from for my urine sample cause the lab never signed it before they sent the sample back.  Which meant the sample wasn’t accounted for before my command got them.  I felt that my situation wasn’t handle the correct way.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990308 - 990317	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990318		Date of Discharge:  020424

Length of Service (years, months, days):

	Active:    03  01  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.33 (3)		OTA:  2.45

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, AFEM, SSDR

Days of Unauthorized Absence:  4

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

991120:	Applicant to unauthorized absence 0700, 991120.

991121:	Applicant from unauthorized absence 0730, 991121 (1 day/surrendered).

000831:	Civil Conviction:  General District Court, Traffic Division, Norfolk, VA for violation of improper turn (accident).
Sentence: Fine $25.00 and court cost.

010331:	Applicant to unauthorized absence 0700, 010331.

010402:	Applicant from unauthorized absence 0630 010402 (1 day/surrendered).

010523:	Applicant to unauthorized absence 0630, 010523.

010525:	Applicant from unauthorized absence 0630, 010525 (2 days/surrendered).

010830:	NJP for violation of UCMJ, Article 128: Assault on 010829.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days, reduction to AA.  Reduction suspended for 6 months.  No indication of appeal in the record.

010918:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010913, tested positive for THC.

010927:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
	Award: Forfeiture of $584 per month for 2 months, restriction for 60 days, reduction to AA.  No indication of appeal in the record.

011217:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by the Captain’s Mast held on 30 August 2001, for assault and misconduct due to drug abuse as evidenced by the Captain’s Mast held on 27 September 2001, for wrongful use of marijuana.

011217:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020222:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

020317:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

020410:	COMNAVAIRLANT Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020424 under other than 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:  The Applicant’s issues are without merit.  There is credible evidence in the record that the Applicant used illegal drugs.  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 Board found no indication in the record that the Applicant was inequitably or improperly discharged.  The Applicant’s allegations do not refute the presumption of regularity in this case.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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