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

  ex-FCSN, USN
Docket No. ND03-00465

Applicant’s Request

The application for discharge review was received on 20030130.  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: 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:

1.  “To whom it may concern,

My name is R_ A_ A_ (Applicant). I served in the United States Navy from March 8, 2000 to December 14, 2001. I was discharged due to misconduct and received a Other than Honorable discharge. After my discharge, I found employment at a local shipyard in Norfolk, Va.. Unfortunately shipyard work lacks stability in working hours which makes it difficult to support my wife and two kids. I have consistently seeked better employment, however my discharge status permits most companies from hiring me.
It has come to my attention that there is a possibility that my discharge can be upgraded which is my reason for writing this letter. I am hoping that an upgraded discharge status will allow me to obtain better employment and further improving the quality of life for my family. I understand that my request may not be easy to obtain or may be denied. However I rather try and am denied, than not try at all. The punishment I received from the U.S. Navy was rightly deserved. However I have put my family in a position they do not deserve to be in. If my only responsibility was myself, I would accept my punishment and continue to move on. Unfortunately my family is also suffering which I can’t allow to continue. Hopefully this is the stepping stone that will give my family the life they deserve and not be punished for my mistakes.
I sincerely thank you for taking the time to read this letter. My address and home phone number are enclosed. I can be contacted on weekdays before 3pm however my wife is home after 3pm. if you wish to contact me. Once again I thank you and I hope to hear from you.

R_ A_ A_ (Applicant)
(Address deleted)
(Home telephone number deleted)”

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)	000229 - 000307	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000308		Date of Discharge:  011214

Length of Service (years, months, days):

	Active:    01  09  07
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  14			AFQT:  72

Highest Rate:  FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010103:	Applicant to unauthorized absence 0730, 010103.

010104:	Applicant from unauthorized absence 0730, 010104 (1 day).

010130:	Applicant to unauthorized absence 0700-0900, 010126.

010307:	Applicant recommended for Level 0.5 Alcohol IMPACT education course.

010418:	Applicant to unauthorized absence 0700-0800, 010418.

010502:	Applicant released from IMPACT treatment due to no show for class on 010430.

010621:	Applicant to unauthorized absence 0700-0750, 010621.

010720:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010717, tested positive for THC.

010823:	Applicant on unauthorized absence 0700-1230, 010823.

010827:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112A:
	Specification: Wrongfully use marijuana from 010620 to 010629.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Restriction for 30 days, reduction to FCSN.
	CA action 010912:  Sentence approved and ordered executed.

011005:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

011113:	Civil Conviction:  General District Court, Traffic Division, Virginia Beach, VA for violation of driving under the influence on 010823 and failure to appear on 011015.
Sentence: Fined $250.00, operator’s license suspended for 1 year, jail for 30 days, VASAP, court cost of $140.00.  Jail suspended.

011119:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, alcohol abuse rehabilitation failure, misconduct due to commission of a serious offense and misconduct due to civil conviction.

011119:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

011130:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, alcohol abuse rehabilitation failure, misconduct due to commission of a serious offense and misconduct due to civil conviction.

011205:	Chief of Naval Education and Training 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 20011214 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   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.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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.  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