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

ex-ASAN, USN 
Docket No. ND03-00601

Applicant’s Request

The application for discharge review was received on 20030226.  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 20040128.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I wish to have my discharge upgraded because I was a 20 year old at the time and feel that I have grown up tremendously since then.

My wife and I are still married after 13 years and have a 14 year old son who is in middle school. I do not want to be ashamed anymore of my discharge when he asks.

I fell into the wrong crowd of people and am truly sorry for my actions. That was 12-13 years ago and I feel I am a totally different person now. My wife and I both work full time jobs, she is employed by the local hospital and I have operated a successful lawn and landscape business for the past 4 years.

I am now enrolled full time at the Withlacoochee Technical Institute Criminal Justice Academy for Law Enforcement. I feel that an upgrade in my discharge is needed to obtain a fulfilling career in law enforcement.

I am asking you to upgrade my discharge so I can move ahead with my life, career, and obligations without having this past history taint and shame me for the rest of my life. Please consider my age at the time, and also the good citizenship, productivity, and history since my discharge. I have had no trouble with the law, or even a speeding ticket since 1992.”

Documentation

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

Verification of attendance at Withlocoocheee Technical Institute, criminal Justice Academy, undated
Character reference from Senior Pastor, undated
Character reference, dated January 29, 2003
Character reference, dated January 30 2003
Character reference, dated January 29, 2003
Character reference, dated January 31, 2003
Standard Form 180

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880423 - 890403	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890404		Date of Discharge:  920507

Length of Service (years, months, days):

	Active:    03  01  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  11			AFQT:  64

Highest Rate:  AS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (4)	Behavior:  3.40 (4)		OTA:  3.60

Military Decorations:  None

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

Days of Unauthorized Absence:  2

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890508:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Service directed urinalysis 890405.  DAPA found Applicant not dependent and recommended Level I treatment.  Commanding Officer recommended retention and Level I treatment.  Comments: SNM tested positive for THC in the accession pipeline urinalysis.

900601:	NJP for violation of UCMJ, Article 108: Selling of military property.
	Award: Forfeiture of $200 per month for 1 month, reduction to ASMAR.  Reduction suspended for 3 months.  No indication of appeal in the record.

900601:	Retention Warning:  Advised of deficiency (Selling of government property.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
901208:	Applicant to unauthorized absence 0645, 901208.

901210:	Applicant from unauthorized absence 0645, 901210 (2 days/surrendered).

920211:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 920117.
	Award: Forfeiture of $482 per month for 2 months, restriction and extra duty for 30 days, reduction to ASAM.  No indication of appeal in the record.

920220:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse as evidenced by all your punishments under the Uniform Code of Military Justice in your current enlistment.

920224:	Alcohol/Drug Evaluation: A: Mixed substance abuse.  P: Level II treatment.

920228:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920306:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

920313:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920507 under other than honorable conditions for misconduct due to commission of a serious offense (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 as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The Applicant’s service record is marred by award of two nonjudicial punishments (NJP) – one for selling of military property and one for illegal drug use, thus substantiating the misconduct for which he was separated.  Mandatory processing for separation is required for sailors who abuse illegal drugs and in conjunction with previous misconduct for a serious offense warrants separation with characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

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 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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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