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

 
 ex-SN, USN
Docket No. ND03-00524

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 the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114.  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: GENERAL (UNDER 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.  “When I was in the Armed Forces I served to the best of my ability with Honor courage and commitment that was instilled in me as a seaman recruit.  I am not angry at the Armed Forces nor do I blame theme for my discharge, but I do believe that it is improper do to my military record being excepinaraly in order for my rank.  And I believe that it was mealy a case of young sailor making a bad decision.  The infraction I was found guilty of I did not commit.  I was simply found guilty do Navy regulation and there was actually no evidence supporting that the infraction was actually committed by me.  I also believe that it is unfair that this should hold me back from completing task in my life.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Additional issues submitted by Applicant’s representative (American Legion):

“2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Character reference, dated January 22, 2003
Evaluation Report & Counseling report, dated March 8, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000309 - 000326	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000327		Date of Discharge:  020328

Length of Service (years, months, days):

	Active:    02  00  02
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  5.00 (1)	Behavior:  2.00 (1)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Letter of Commendation (2)

Days of Unauthorized Absence:  None

*[Extracted from supporting documents furnished by the Applicant]

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:

001030:	Applicant to unauthorized absence 0500-0800, 001030.

001120:	Applicant to unauthorized absence 0715-0830, 001220.

010924:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010917, tested positive for THC.

010925:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

010926:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010926:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

011004:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

011005:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a four to one vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended retention.

011028:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.

020130:	Commander, Naval Personnel Command recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to drug abuse.

020220:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.

020222:	CNPC directed the Applicant's discharge general (under 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 20020328 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 and equitable (C and D).

Issue 1:  The Applicant’s issue is 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 Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service.  The Board found no indication in the record that the Applicant was inequitably or improperly discharged.  Relief denied.

Issue 2:  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 Board determined that the documentation provided by the Applicant does not mitigate his illegal drug use 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