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

 ex-AR, USNR 
Docket No. ND03-00509

Applicant’s Request

The application for discharge review was received on 20030211.  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 listed a civilian counsel as the 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 considered 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.  “Applicant voluntarily entered the United States Navy on 15 MAR 1999. Applicant served almost two (2) full years of good and faithful service, earning noteworthy performance evaluations and a Navy “E” Ribbon for his service. Applicant successfully attended and passed all required training courses. In all respects, Applicant was a credit to the Navy absent one incident and error in judgment. Applicant accepted responsibility for his actions, even without the assistance or advice of counsel. After discharge, Applicant has renewed his commitment to his family, community and country. He re-entered civilian life and has become an exemplary young man who hopes to get married soon, raise a family and continue to contribute to his community. Applicant has had no further “marks” on his record since his discharge. Supporting Applicant’s request are letters from New York City law enforcement personnel attesting to his good character. Applicant, if given the chance, would like to re-enter the Navy. In the interests of justice, given his good and faithful service before the incident and his readjustment to civilian life after the incident, Applicant’s life should not be tarred forever with an “under other than honorable discharge."  Applicant's discharge should be changed to "Honorable" to correctly reflect his service and the current status of his life.”

Documentation

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

Letter from Applicant’s parents, dated January 23, 2003
Letter from M_ M_, dated January 16, 2003
Letter from relative, C_ G_, FBI, dated January 8, 2003
Letter from a retired law enforcement officer and neighbor of Applicant, dated January 12, 2003
Letter from F_ T_ C_, retired law enforcement officer and neighbor of Applicant
Letter from J_ T_, Applicant’s employer, dated January 22, 2003
Letter from J_ T_, shop stewart, Staten Island Yankees, dated January 17, 2003
Applicant’s DD Form 214
Applicant’s résumé
Letter from A_ J. P_, dated January 28, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: None
Active:   None

Period of Service Under Review:

Date of Enlistment:  990303		Date of Discharge:  010313

Length of Service (years, months, days):

	Active:    01  11  29
	Inactive:  00  00  12

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  37

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  1.67 (3)		OTA:  2.78

Military Decorations:  None

Unit/Campaign/Service Awards:  NER

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:

000922:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000922:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000925:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award: Forfeiture of $564 per month for 2 months, restriction for 60 days, reduction to AA.  No indication of appeal in the record.

000927:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  [Extracted from Commanding Officer’s letter dated 001110.]

001110:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “AA G_ (Applicant) admitted to using Psilocybin Mushrooms “Shrooms”, Crystal Methamphetamine “Ice” and, 3, 4-Methylenedioxymethamphetamine “Ectasy”.  The Navy’s drug use policy is zero tolerance and I fully support it.  There is no room in the Navy for users of illegal drugs.  AA G_’s (Applicant’s) disregard for the Navy zero tolerance policy and his own health has put the lives of the command members at risk.  This individual has no potential for continued Naval Service and is strongly recommended for Administrative Separation with a character of service as Other Than Honorable.”

001201:	Commander, Carrier Group FIVE 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 20010313 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 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