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

 ex-ICFN, USN 
Docket No. ND03-00633

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 personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040204.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The test that was given to me for drug abuse was flawed.  At the time of testing, I ws on other medication due to a back injury.  When I went to the Captain’s Mast, the board would not take into account that I was under other medications at the time of testing.  The test was performed on 3-22-1994 and was not informed until around June and did not get the Captain’s Mast until August.  IN September I was discharged with an “UNDER THAN HONORABLE CONDITIONS.”  This whole process was flawed.  I did not use any drugs and believe my discharge should be upgraded.”

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 the application.”

Documentation

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

Applicant’s DD Form 214 (2)
Twenty-two pages from Applicant’s service record (2)
Police record check, dated March 28, 2003
Character reference, dated April 25, 2003
Canon Training Certificate, dated June 30, 1995
Canon Training Certificate, dated July 13, 1995
Canon Training Certificate, dated March 10, 1995
Character/job reference from President, Datatronics, Inc., undated
Letter of reference, dated April 18, 2003
Character reference, dated April 11, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910427 - 819511	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910515		Date of Discharge:  940922

Length of Service (years, months, days):

	Active:    03  04  08
	Inactive:  None

Age at Entry:  34			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  IC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  3.67 (3)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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 3630620.

Chronological Listing of Significant Service Events:

921214:	Counseling: Advised of deficiency (Unauthorized absence/tardiness and responsibilities.), notified of corrective actions and assistance available.

930219:	Counseling: Advised of deficiency (Responsibilities (2 counseling)), notified of corrective actions and assistance available.

930223:	Counseling: Advised of deficiency (Responsibilities.), notified of corrective actions and assistance available.

930224:	Counseling: Advised of deficiency (Responsibilities.), notified of corrective actions and assistance available.

930331:	Counseling: Advised of deficiency (Unauthorized absence and responsibilities.), notified of corrective actions and assistance available.

930421:	Counseling: Advised of deficiency (Unauthorized absence and responsibilities.), notified of corrective actions and assistance available.

930422:	Counseling: Advised of deficiency (Substandard dress/appearance and responsibilities.), notified of corrective actions and assistance available.

930503:	Counseling: Advised of deficiency (Substandard dress/appearance and responsibilities.), notified of corrective actions and assistance available.

931115:	Counseling: Advised of deficiency (Unauthorized absence and responsibilities), notified of corrective actions and assistance available.

931204:	Counseling: Advised of deficiency (Substandard dress/appearance and responsibilities), notified of corrective actions and assistance available.

931222:	Counseling: Advised of deficiency (Indebtedness), notified of corrective actions and assistance available.

940329:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 940322, tested positive for cocaine.

940411:	NCIS report.

940628:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 940322.
	Award: Forfeiture of $531 per month for 2 months, restriction and extra duty for 45 days, reduction to ICSN.  No indication of appeal in the record.

940630:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent

940628:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your service record.

940707:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940710:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940720:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

940817:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940922 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.  
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 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.  An Administrative Discharge Board, based upon a preponderance of the 
evidence and by unanimous vote, found that the Applicant had committed misconduct due to
drug abuse, that the misconduct warranted separation, and recommended discharge under 
other than honorable conditions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief is appropriate.

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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